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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES ACT OF 1934
COMMISSION FILE NUMBER 0-19385
ALLIED WASTE INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 88-0228636
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
15880 NORTH GREENWAY-HAYDEN LOOP, SUITE 100
SCOTTSDALE, ARIZONA 85260
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (602) 423-2946
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SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
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Common Stock, $.01 par value NASDAQ/NMS
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities and Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ].
Indicated by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
The aggregate market value of the registrant's voting stock held by
nonaffiliates of the registrant was $274,537,542 as of March 24, 1997.
The number of shares of the Company's common stock, $.01 par value,
outstanding at March 24, 1997 was 75,648,107.
The registrant's proxy statement is to be filed in connection with the
registrant's 1996 annual meeting of stockholders and is incorporated by
reference into Part III of this report.
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PART I
ITEM 1. BUSINESS
Allied Waste Industries, Inc., a Delaware corporation ("Allied" or the
"Company"), is a vertically-integrated, non-hazardous solid waste management
company providing collection, transfer, processing and disposal services. On
December 30, 1996, the Company completed the acquisition of substantially all of
the non-hazardous solid waste management business conducted by Laidlaw Inc.
("Laidlaw") in the United States and Canada (the "Laidlaw Acquisition"), for
total consideration of approximately $1.5 billion comprised of $1.2 billion
cash, 14.6 million shares of the Company's common stock, par value $0.01 per
share (the "Common Stock"), warrants to acquire 20.4 million shares of Common
Stock, and two junior subordinated debentures with an aggregate face amount of
$318 million (the "Allied Canada Debentures"). The cash consideration was
financed from the proceeds of a senior credit facility in the aggregate amount
of $1.275 billion (the "Senior Credit Facility") and the sale of $525 million of
the Company's 10 1/4% Senior Subordinated Notes due 2006 (the "1996 Notes").
On March 16, 1997, pursuant to a Share Purchase Agreement with USA
Waste Services, Inc. ("USA Waste") the Company sold to USA Waste (the "Canadian
Sale") all of the Canadian non-hazardous solid waste management operations of
the Company for approximately $518 million. The Company used the proceeds from
the Canadian Sale to pay down approximately $517 million in debt under the
Senior Credit Facility. The Company acquired the Canadian operations in
connection with the Laidlaw Acquisition. Unless otherwise indicated, all
references to the Company and its operations contained herein give effect to the
Canadian Sale.
The Company is the fourth largest solid waste management company in the
United States, as measured by revenues. The Company pursues a business strategy
designed to develop vertically-integrated operations centered around landfills
that are owned or operated by the Company in the markets it currently serves.
The Company serves 1.4 million customers through operations in 22 states located
primarily in the midwest, northeast, southeast and southwest United States. The
Company has an extensive network of 32 transfer stations, 46 landfills, and 20
recycling facilities.
INDUSTRY TRENDS
According to the National Solid Waste Management Association and Waste
Age Magazine, the North American solid waste industry was estimated to have had
revenues of more than $32 billion in 1995. The industry is highly fragmented
with the four largest companies accounting, in 1995, for approximately 30% of
revenues, seven mid-sized public companies accounting for approximately 4% of
revenues, and several thousand municipalities and independent collection firms
accounting for the remainder. The solid waste management industry has been
affected significantly by increased regulation of disposal activities and to a
lesser extent collection activities also, have been affected. In October 1991,
the Environmental Protection Agency (the "EPA") adopted new regulations pursuant
to Subtitle D ("Subtitle D") of the Resource Conservation and Recovery Act of
1976, as amended ("RCRA") governing the disposal of non-hazardous solid waste.
These regulations led to a variety of requirements applicable to landfill
disposal sites, including the construction of liners and the installation of
leachate collection systems, groundwater monitoring systems and methane gas
recovery systems. The regulations also require enhanced control systems to
monitor more closely the waste streams being disposed at landfills, extensive
post-closure monitoring of sites and financial assurances that landfill
operators will be able to comply with the stringent regulations. The rising
costs associated with increasingly stringent industry regulations have tended to
promote consolidation and acquisition activity within the industry.
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The Company believes that these trends will continue and are the result
of several factors:
(1) Subtitle D and similar state regulations have significantly
increased the amount of capital and technical expertise
required to own and operate a landfill. As a result, many
landfill operators that lack the necessary capital or
expertise are electing to sell their landfills as an
alternative to closing them;
(2) a number of municipalities are electing to privatize their
municipal landfills as an alternative to funding the changes
to such landfills required by Subtitle D and related state
regulations; and
(3) as a result of heightened sensitivity to environmental
conditions in many communities, it is becoming increasingly
desirable for solid waste management companies to provide
waste recycling programs in addition to conventional
collection and disposal services.
These developments, as well as more stringent bonding requirements being imposed
on solid waste management companies by various municipalities, have increased
the amount of capital generally required for solid waste management operations,
causing smaller companies that lack the requisite capital to sell their
operations to better-capitalized companies.
BUSINESS STRATEGY
The Company's business strategy is to build a vertically-integrated
solid waste management company with a strong presence in specific markets. The
Company plans to implement this strategy by (i) establishing a market presence
generally based on the acquisition or development of a landfill; (ii) increasing
volume in its markets through "tuck-in" acquisitions of collection companies and
marketing to new customers; (iii) providing a high level of customer service;
(iv) competitively pricing its services based on the particular circumstances of
each market; and (v) continuing to control costs and reduce corporate overhead
as a percentage of revenues. The Company believes that its strategy to build
vertically-integrated operations will provide the Company with competitive
advantages in its targeted regional markets.
The Company pursues acquisitions in geographic areas characterized by
one or more of the following criteria: (i) the availability of permitted and
underutilized landfill capacity located either close to or outside of, but
within economic range of, a major population center, (ii) disposal fees that
justify necessary transportation expenses, (iii) near or medium-term scheduled
closures of landfills near such a population center, (iv) a shift in landfill
ownership from public to private and (v) rural landfills that are likely to
provide opportunities in a local market.
The Company has adopted the following four-step program in executing
its business strategy:
(1) Landfill Acquisitions. Once the Company identifies an area
that qualifies under its target market criteria, the Company
seeks to establish a market presence, generally by acquiring
one or more landfills in that area that can be accessed
economically from the metropolitan center or from the regional
market area, either through direct hauling or through
strategically located transfer operations. In evaluating a
landfill acquisition, the Company considers, among others, the
following factors: (i) current disposal costs together with
transportation costs to the targeted landfill relative to
transportation and disposal costs of potential competitors,
(ii) expected landfill capacity, (iii) opportunities for
landfill expansion, and (iv) projected short-term ability to
secure an acceptable level of disposal volume.
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(2) Secure Captive Waste Volumes. The Company seeks to build a
market presence and increase the utilization of the landfill
by securing captive waste streams, which includes developing
and acquiring transfer stations, entering into waste
collection contracts and acquiring waste collection companies.
Generally, the Company pursues the acquisition of collection
companies that: (i) have well-established residential or
commercial collection routes and accounts, (ii) own and
operate transfer stations, or (iii) do not own landfills and
are vulnerable to volatile disposal pricing, which the Company
believes it can minimize through landfill ownership.
(3) "Tuck-in" Acquisitions. The Company acquires service rights,
obligations, machinery and equipment in "tuck-in" acquisitions
of collection companies to: (i) increase the waste stream
directed to its landfills, (ii) maximize its market presence,
and (iii) increase customer density on collection routes to
reduce operating costs and strengthen return on capital.
(4) Integration of Operations. Immediately following an
acquisition, the Company begins to integrate the acquired
company into its operating and control systems, internalizing
waste previously disposed at third party landfills to
facilities owned or operated by the Company, establishing an
operating plan, implementing the Company's operating policies
and procedures, including the consolidation and
rationalization of routes and pricing, establishing new
banking and cash control procedures, integrating the acquired
company's accounting, data processing and management reporting
systems and appointing a new board of directors. In many
acquisitions, the Company retains the management of the
company it acquires in order to benefit from the existing
management's understanding of the local market, personal and
business contacts, and goodwill in the community.
OPERATIONS
COLLECTION. Collection operations involve collecting and transporting
non-hazardous waste from the point of generation to the transfer station or the
site of disposal. Solid waste collection is generally provided under two primary
types of arrangements, depending on the customer being served.
Commercial. The Company provides containerized non-hazardous solid
waste disposal services to a wide variety of commercial and industrial
customers. These customers are provided with containers that are designed to be
lifted mechanically and either emptied into a collection vehicle's compaction
hopper or, in the case of roll-off containers, to be loaded onto the collection
vehicle. The Company's commercial containers generally range in size from one to
eight cubic yards and its roll-off containers generally range in size from 20 to
40 cubic yards. Contracts for commercial containers typically have terms of up
to five years, may not be terminated by the customer prior to the end of the
term and have renewal options. Contracts for roll-off containers may provide for
temporary (such as the removal of waste from a construction site) or ongoing
services. Fees relating to those contracts are determined by general competitive
and prevailing local economic conditions and include other considerations such
as collection frequency, type of equipment furnished, distance traveled to the
disposal site, the cost of disposal and the type and volume or weight of the
waste collected.
Residential. Residential collection services are performed pursuant to
individual monthly subscriptions directly to households or long-term contracts
with municipal governments that give the Company exclusive rights to service all
or a portion of the homes in such municipalities at established rates. The
Company seeks to obtain municipal contracts which enhance the efficiency and
profitability of the Company's operations as a result of the density of
collection customers within a given area. At the end of the term of most
municipal contracts, the Company will attempt to renegotiate the contract, and
if unable to do so, will rebid the contract on a sealed bid basis. Residential
collection service arrangements with households are made directly between the
Company and the resident. The Company seeks to enter into residential service
arrangements where the route density is high, thereby creating additional
economic benefit. Collection fees are determined by the Company and the customer
based on general competitive and prevailing local economic conditions and
include other considerations such as collection
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frequency, the type and volume or weight of the waste collected, the distance to
the disposal facility, and cost of disposal. Residential collection fees are
either paid by the municipalities out of tax revenues or service charges or are
paid directly by the residents who receive the service.
TRANSFER STATIONS. A transfer station is a facility where solid waste
is received from third-party and Company owned collection vehicles and then
transferred to and compacted in large, specially-constructed trailers for
transportation to disposal facilities. This consolidation reduces costs by
increasing the density of the waste being transported through competition and by
improving utilization of collection personnel and equipment, and is an
increasingly common procedure in the solid waste management industry. Fees are
generally based upon such factors as the type and volume or weight of the waste
transferred and the transport distance involved. The Company believes that as
increased regulations and public pressure restrict the development of landfills
in urban and suburban areas, transfer stations will increasingly be used as an
efficient means to transport waste over longer distances to available landfills.
RECYCLING. In response to increasing awareness by the customer of
environmental concerns and expanding federal and state regulations pertaining to
waste recycling, the Company includes recycling as a component of its vertically
integrated solid waste business strategy. Services include curbside collection
of recyclable materials for residential customers, commercial and industrial
collection of recyclable materials, and, to a lesser extent, material
recovery/waste reduction. Recycling fees are generally service based wherein the
customer pays for the cost of removing, processing and disposing of potentially
recyclable materials. In most cases, mixed waste materials are received at an
owned or leased materials recovery facility ("MRF") which is often integrated
into or contiguous to a transfer operation. Materials such as paper, cardboard,
plastic, aluminum and other metals are sorted, separated, accumulated, bound or
placed in a container and readied for transportation to a third-party which will
reuse the separated materials. The purchaser generally pays for the materials
based on fluctuating spot-market prices. Material for which there is no market
or for which the market price is insufficient to warrant processing are disposed
of at a landfill or other disposal facility. The Company seeks to avoid exposure
to fluctuating commodity prices by passing through substantially all of the
profit or loss from the sale of recyclables to its service customers.
LANDFILLS. Solid waste landfills are the primary method of disposal of
solid waste in the United States. Currently, a landfill must be designed,
permitted, operated and closed in compliance with federal, state and local
regulations pursuant to Subtitle D. Operating procedures include excavation,
continuous spreading and compacting of waste, and covering of waste with earth
or other inert material. The cost of transferring solid waste to a disposal
location places an economic restriction on the geographic scope of landfill
operations in a particular market. Access to a disposal facility, such as a
landfill, is a requirement for all solid waste management companies. While
access can generally be obtained to disposal facilities owned or operated by
unaffiliated parties, the Company believes that, in keeping with its business
strategy, it is preferable for collection companies to own or operate their own
disposal facilities thereby ensuring access on favorable terms and the
internalization of disposal fees.
MARKETING AND SALES
Each of the Company's districts has a staff responsible for sales and
marketing. The Company's policy is to periodically visit each commercial account
to ensure customer satisfaction and to sell additional services. In addition to
calling on existing customers, each salesperson calls upon potential customers
within a defined area in each market.
In addition to its sales efforts directed at commercial and industrial
customers, the Company has a municipal marketing coordinator in most service
areas. The municipal marketing coordinators are responsible for interfacing with
each municipality or community to which the Company provides residential service
to assure customer satisfaction. In addition, the municipal coordinators
organize and handle bids for renewal and new municipal contracts in their
service area.
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COMPETITION
The non-hazardous waste collection and disposal industry is highly
competitive. The industry is comprised of four national waste companies in
addition to the Company, WMX Technologies, Inc., Browning-Ferris Industries,
Inc. ("BFI"), Republic Industries, Inc., USA Waste Services, Inc. and local and
regional companies of varying sizes and competitive resources such as United
Waste Systems, Inc. and Superior Services, Inc. The Company also competes with
those counties and municipalities that maintain their own waste collection or
disposal operations. These counties and municipalities may have financial
advantages through their access to tax revenues and tax-exempt financing and
their ability to mandate the disposal of waste collected within the jurisdiction
at a municipal landfill. The Company may also experience competition from
companies using alternative methods of managing solid waste streams, such as
incineration.
The solid waste collection and disposal industry is currently
undergoing significant consolidation, and the Company encounters competition in
its efforts to acquire landfills and collection operations. Accordingly, it may
become uneconomical for the Company to make further acquisitions or the Company
may be unable to locate or acquire suitable acquisition candidates at price
levels and on terms and conditions that the Company considers appropriate,
particularly in markets the Company does not already serve.
ENVIRONMENTAL AND OTHER REGULATIONS
The Company is subject to extensive and evolving environmental laws and
regulations. These regulations are administered by the EPA and various other
federal, state and local environmental, zoning, health and safety agencies, many
of which periodically examine the Company's operations to monitor compliance
with such laws and regulations. The Company believes that there will be
increased regulation and legislation related to the waste management industry
and the Company attempts to anticipate such future regulatory requirements to
ensure compliance.
The Company's operation of landfills subjects it to certain
operational, monitoring, site maintenance, closure, post-closure and other
obligations which could give rise to increased costs for monitoring and
corrective measures. In connection with the Company's acquisition of existing
landfills, it is often necessary to expend considerable time, effort and money
to obtain permits required to increase the capacity of these landfills.
Governmental authorities have the power to enforce compliance with these
regulations and to obtain injunctions or impose civil or criminal penalties in
case of violations. The Company cannot predict whether or not it will be able to
obtain the governmental approvals necessary to establish new or expand existing
landfills and, if it does, whether or not it will be economically beneficial to
do so.
The Company's operations are subject to extensive regulation,
principally under the following federal statutes:
The Resource Conservation and Recovery Act of 1976, as amended. RCRA
regulates the handling, transportation and disposal of hazardous and
non-hazardous wastes and delegates authority to states to develop programs to
ensure the safe disposal of solid wastes. On October 9, 1991, the EPA
promulgated Solid Waste Disposal Facility Criteria for non-hazardous solid waste
landfills under Subtitle D. Subtitle D includes location standards, facility
design and operating criteria, closure and post-closure requirements, financial
assurance standards and groundwater monitoring as well as corrective action
standards, many of which had not commonly been in place or enforced previously
at landfills. Subtitle D applies to all solid waste landfill cells that received
waste after October 9, 1991, and, with limited exceptions, all landfills were
required to meet these requirements by October 9, 1993. Landfills that were not
in compliance with the requirements of Subtitle D on the applicable date of
implementation were required to close. In addition, landfills that stopped
receiving waste before October 9, 1993 were not required to comply with the
final cover provisions of Subtitle D. Each state must comply with Subtitle D and
was required to submit a permit program designed to implement Subtitle D to the
EPA for approval by April 9, 1993. States may impose requirements for
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landfill units that are more stringent than the requirements of Subtitle D. Once
a state has an approved program, it must review all existing landfill permits to
ensure that they comply with Subtitle D.
The Federal Water Pollution Control Act of 1972 (the "Clean Water
Act"), as amended. This act establishes rules regulating the discharge of
pollutants into streams and other waters of the United States (as defined in the
Clean Water Act) from a variety of sources, including solid waste disposal
sites. If runoff from the Company's landfills or transfer stations may be
discharged into surface waters, the Clean Water Act requires the Company to
apply for and obtain discharge permits, conduct sampling and monitoring and,
under certain circumstances, reduce the quantity of pollutants in those
discharges. The permit program has been expanded to include stormwater
discharges from landfills that receive, or in the past received, industrial
waste. In addition, if development may alter or affect "wetlands," a permit may
have to be obtained and certain mitigation measures may need to be undertaken
before such development may be commenced. This requirement is likely to affect
the construction or expansion of many solid waste disposal sites, including some
owned or being developed by the Company. The Clean Water Act provides civil,
criminal and administrative penalties for violations of its provisions.
The Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended. The Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended ("CERCLA") addresses problems created by
the release or threatened release of hazardous substances into the environment.
CERCLA's primary mechanism for remediating such problems is to impose strict,
joint and several liability for cleanup of disposal sites on current owners and
operators of the site, former site owners and operators at the time of disposal,
and waste generators and parties who arranged for disposal at the facility. The
costs of a CERCLA cleanup can be substantial. Liability under CERCLA is not
dependent on the existence or disposal of "hazardous wastes" (as defined under
RCRA), but can also be founded on the existence of even minute amounts of the
more than 700 "hazardous substances" listed by the EPA.
The Clean Air Act of 1970 (the "Clean Air Act"), as amended. The Clean
Air Act provides for increased federal, state and local regulation of the
emission of air pollutants. The EPA has construed the Clean Air Act to apply to
landfills. In March 1996, the EPA adopted New Source Performance Standard and
Emission Guidelines (the "Emission Guidelines") for municipal solid waste
landfills. These regulations impose limits on air emissions from solid waste
landfills. The Emission Guidelines propose two sets of emissions standards, one
of which is applicable to all solid waste landfills that commence construction,
reconstruction or modification after May 30, 1991 and another which is
applicable to all solid waste landfills that received waste or had the capacity
to receive waste after November 8, 1987. The Emission Guidelines may be
implemented by the states. These guidelines, combined with the new permitting
programs established under the recent Clean Air Act amendments, will likely
subject solid waste landfills to significant new permitting requirements and, in
some instances, require installation of methane gas recovery systems.
The Occupational Safety and Health Act of 1970 ("OSHA"), as amended.
OSHA establishes certain employer responsibilities, including maintenance of a
workplace free of recognized hazards likely to cause death or serious injury,
compliance with standards promulgated by the Occupational Safety and Health
Administration, and various recordkeeping, disclosure and procedural
requirements. Various standards, including standards for notices of hazards,
safety in excavation and demolition work, and the handling of asbestos, may
apply to the Company's operations.
Future Federal Legislation. In the future, the Company's collection,
transfer and landfill operations may also be affected by legislation that may be
proposed in the United States Congress that would authorize the states to enact
legislation governing interstate shipments of waste. Such proposed federal
legislation may allow individual states to prohibit the disposal of out-of-state
waste or to limit the amount of out-of-state waste that could be imported for
disposal and would require states, under certain circumstances, to reduce the
amounts of waste exported to other states. If this or similar legislation is
enacted, states in which the Company will operate landfills could act to limit
or prohibit the importation of out-of-state waste. Such state actions could
adversely affect landfills within these states that receive a significant
portion of waste originating from out-of-state.
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State Regulation. Each state in which the Company operates has laws and
regulations governing solid waste disposal and water and air pollution and, in
most cases, regulations governing the design, operation, maintenance and closure
of landfills and transfer stations. Management believes that several states have
proposed or have considered adopting legislation that would regulate the
interstate transportation and disposal of waste in their landfills. Many states
have also adopted legislative and regulatory measures to mandate or encourage
waste reduction at the source and waste recycling.
The Company's collection and landfill operations may be affected by the
current trend toward laws requiring the development of waste reduction and
recycling programs. For example, a number of states have recently enacted laws
that will require counties to adopt comprehensive plans to reduce, through waste
planning, composting and recycling or other programs, the volume of solid waste
deposited in landfills within the next few years. A number of states have also
taken or propose to take steps to ban or otherwise limit the disposal of certain
wastes, such as yard wastes, beverage containers, newspapers, unshredded tires,
lead-acid batteries and household appliances into landfills.
The Company has implemented and will continue to implement its own
environmental safeguards that comply with or exceed these governmental
requirements. Additionally, the Company's policy will be to obtain an
environmental assessment prepared by an independent environmental consulting
firm for all real estate acquired.
LIABILITY INSURANCE AND BONDING
The Company carries general liability, comprehensive property damage,
workers' compensation, employer's liability, directors' and officers' liability
and other coverages it believes are customary to the industry. The Company also
has environmental impairment liability insurance for all of its operating
landfills except one owned and four operated sites. The environmental impairment
liability insurance is in the amount of up to $5 million for the policy term in
excess of a $1 million deductible per claim. Except as discussed in Legal
Proceedings below, management does not expect the impact of any known
environmental or other contingencies to be material to the Company's
consolidated liquidity, financial position or results of operations.
The Company is required to provide certain financial assurances to
governmental agencies under applicable environmental regulations relating to its
landfill and collection operations. These financial assurances include
performance bonds, letters-of-credit, insurance contracts and trust deposits
required principally to secure the Company's estimated landfill closure and
post-closure obligations and collection contracts. The Company expects to be
required to provide approximately $227.6 million in financial assurance
obligations relating to its landfill operations by the end of fiscal year 1997.
The Company expects that financial assurances will increase in the future as the
Company acquires and expands its activities and that a greater percentage of the
financial assurances will be comprised, directly and indirectly, of
letters-of-credit.
EMPLOYEES
The Company employs approximately 5,000 persons. Certain employees of
the Company are covered by collective bargaining agreements. The Company
believes relations with its employees are satisfactory.
ITEM 2. PROPERTIES
The Company's principal executive offices are located at 15880
Greenway-Hayden Loop, Suite 100, Scottsdale, Arizona 85260 where it currently
leases 33,000 square feet of office space. The Company also maintains six
regional administrative offices in the United States.
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The principal fixed assets used by the Company in its collection and
transfer operations are 32 owned or operated transfer/recycling facilities. The
Company operates 46 non-hazardous solid waste landfills.
ITEM 3. LEGAL PROCEEDINGS
The Company is currently involved in certain routine litigation. The
Company believes that all such litigation arose in the ordinary course of
business and that costs of settlements or judgments arising from such suits will
not have a materially adverse effect on the Company's consolidated liquidity
financial position or results of operations.
The business of the Company is regulated by federal, state and local
provisions that relate to the protection of the environment. The nature of the
Company's business results in it frequently becoming a party to judicial or
administrative proceedings involving governmental authorities and other
interested parties. At December 31, 1996, the Company was not involved in any
such proceedings where management believes sanctions imposed by governmental
authorities may exceed $100,000. From time to time the Company may also be
subject to actions brought by citizens' groups, adjacent landowners or others in
connection with the permitting and licensing of its landfills or transfer
stations, or alleging personal injury, environmental damage or violations of the
permits and licenses pursuant to which the Company operates.
In connection with the Laidlaw Acquisition, Allied engaged an
independent environmental consulting firm to assist in conducting an
environmental assessment of the real property owned by certain subsidiaries of
the Company acquired from Laidlaw (the "LWS Subsidiaries") or third-parties, and
properties under the management of the LWS Subsidiaries. Several contaminated
landfills and other properties have been identified, two of which are owned by
subsidiaries of the Company, that would require those subsidiaries to incur
costs for incremental closure and post-closure measures, remediation activities
and litigation costs in the future. The costs of performing the investigation,
design, remediation and allocation of responsibility to the subsidiaries of
Allied vary significantly between sites. Based on information available to the
Company, Allied recorded a provision of $51.5 million for environmental matters,
including closure and post-closure costs, in the 1996 statement of operations
and expects these amounts to be disbursed over the next 30 years.
The Company has been notified that it is considered a potentially
responsible party at a number of locations under CERCLA or other environmental
laws. The Company continually reviews its status with respect to each location,
taking into account the alleged connection to the location and the extent of the
contribution to the volume of waste at the location, the available evidence
connecting the entity to that location and the numbers and financial soundness
of other potentially responsible parties at the location. The ultimate amounts
for environmental liabilities at sites regarding which the Company may be a
potentially responsible party cannot be determined and estimates of such
liabilities made by the Company, after consultation with its independent
environmental engineers, require assumptions about future events due to a number
of uncertainties including the extent of the contamination, the appropriate
remedy, the financial viability of other potentially responsible parties and the
final apportionment of responsibility among the potentially responsible parties.
Where the Company has concluded that its estimated share of potential
liabilities is probable, a provision has been made in the consolidated financial
statements. Since the ultimate outcome of these matters may differ from the
estimates used in the Company's assessment to date, the recorded liabilities
will be periodically evaluated as additional information becomes available to
ascertain that the accrued liabilities are adequate. The Company has determined
that the recorded liability for environmental matters as of December 31, 1996 of
approximately $152.5 million (including the $51.5 million provision charged to
the 1996 statement of operations) represents the most probable outcome of these
contingent matters. The Company does not expect that adjustments to estimates,
which are reasonably possible in the near term and that may result in changes to
recorded amounts, will have a material effect on the Company's consolidated
liquidity, financial position or results of operations.
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The consolidated federal income tax returns for the fiscal years ended
August 31, 1986, 1987 and 1988 of certain subsidiaries of the Company that were
acquired from Laidlaw in December 1996 have been under audit by the Internal
Revenue Service. In March 1994, the LSW Subsidiaries received a Statutory Notice
of Deficiency proposing that the LSW Subsidiaries pay additional taxes relating
to disallowed deductions in those income tax returns (the "Tax Controversy").
The consolidated tax group of the LSW Subsidiaries has also received notice that
fiscal years 1992, 1993 and 1994 will be examined regarding the Tax Controversy.
The LSW Subsidiaries could be directly liable for a substantial portion of any
tax and interest assessed if the disallowance of the deduction is sustained. In
addition, under Treasury Regulations promulgated under Section 1502 of the
Internal Revenue Code ("IRC"), each member of the consolidated tax group
including each LSW Subsidiary, is or could be severally liable for federal
income tax liabilities of the entire consolidated tax group, including any taxes
due on the deemed sale of assets by the LSW Subsidiaries pursuant to Section 338
of the IRC and all amounts at issue in the Tax Controversy which are ultimately
determined to be owed.
Any amounts at issue in the Tax Controversy and for which any LSW
Subsidiary may ultimately be found liable, are included in and covered by the
indemnification of the Company by Laidlaw set forth in the Stock Purchase
Agreement by and between the Company and Laidlaw, among others, dated September
17, 1996 (the "Purchase Agreement"). Further, the Company and Laidlaw, among
others, have entered into a Setoff Agreement, under which Laidlaw has agreed
that if the Tax Controversy results in any damage, liability or expense to any
LSW Subsidiary, and if Laidlaw fails to indemnify the Company against all such
damages, liabilities or expenses within 30 days of a demand for indemnification,
then the Company may setoff the amount of all such damages, liabilities and
expenses against all amounts then owed by the Company under the certain debt
issued to Laidlaw consisting primarily of the Allied Canada Debentures.
Other than to the extent contemplated in the Setoff Agreement, the
obligation of Laidlaw to indemnify the Company in respect of amounts at issue in
the Tax Controversy is a general, unsecured obligation of Laidlaw. The ability
of Laidlaw to pay and fulfill such indemnification obligation will depend on the
financial condition of Laidlaw at the time of any required performance of such
obligation.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On December 27, 1996, a special meeting of the stockholders of the Company was
held. The holders of 45,851,275 shares of Common Stock were present or
represented by proxy at the meeting. At the meeting, the stockholders took the
following actions:
a) Approval of the issuance and potential issuances of Common Stock
pursuant to the Laidlaw Acquisition.
The stockholders approved the issuance and potential issuances of
Common Stock pursuant to the Purchase Agreement. Votes were cast as
follows:
<TABLE>
<CAPTION>
Number of Number of Number of
Votes For Votes Against Votes Abstaining
---------- ------------- ----------------
<S> <C> <C>
44,356,363 325,567 939,669
</TABLE>
b) Approval to amend the Certificate of Incorporation of the Company which
increases the authorized number of shares.
The stockholders approved the proposal to amend the Certificate of
Incorporation of the Company which increases the authorized number of
shares of the Common Stock to 200 million. Votes were cast as follows:
<TABLE>
<CAPTION>
Number of Number of Number of
Votes For Votes Against Votes Abstaining
---------- ------------- ----------------
<S> <C> <C>
44,185,145 775,384 890,746
</TABLE>
10
<PAGE> 11
P A R T I I
ITEM 5. MARKET FOR THE COMMON STOCK AND RELATED STOCKHOLDER MATTERS.
DIVIDEND POLICY
The Company has not paid dividends on its Common Stock, does not
anticipate paying any dividends thereon in the foreseeable future and is
prohibited under the terms of the Company's long-term indebtedness from paying
such dividends.
PRICE RANGE OF COMMON STOCK
The Common Stock is traded on the Nasdaq National Market tier of The
Nasdaq Stock Market under the symbol "AWIN." The high and low prices per share
for the periods indicated were as follows:
<TABLE>
<CAPTION>
High Low
------- ------
<S> <C> <C>
Year ended December 31, 1995
First Quarter ....................... 5 3 3/4
Second Quarter ...................... 7 1/4 4 3/4
Third Quarter ....................... 10 6 7/8
Fourth Quarter ...................... 9 5/8 6 3/8
Year ended December 31, 1996
First Quarter ....................... 9 1/8 6 1/2
Second Quarter ...................... 10 1/8 8 1/8
Third Quarter ....................... 9 1/2 6 13/16
Fourth Quarter ...................... 9 1/2 8 1/8
</TABLE>
All of the foregoing prices reflect interdealer quotations, without
retail markups, markdowns or commissions.
As of March 24, 1997, there were approximately 576 record holders of
the Common Stock.
Recent Sales of Unregistered Securities
The following table reflects sales by the Company of unregistered
securities during the fiscal year ended December 31, 1996. Except as otherwise
disclosed, the issuances by the Company of the securities sold in the
transactions referenced below were not registered under the Securities Act of
1933, as amended, pursuant to the exemptions contemplated in Section 4(2) and
Section 3 (a) (9), thereof, or Regulation D thereunder, for transactions not
involving a public offering. The consideration paid to the Company in respect of
each issuance was cash, unless otherwise indicated.
11
<PAGE> 12
<TABLE>
<CAPTION>
Shares or
Principal
Description/Date Amount Consideration Underwriters and Other Purchasers
- ---------------- ------ ------------- ---------------------------------
COMMON STOCK
<S> <C> <C> <C>
January 3, 1996 50,000 $ 150,000 William La Reese (exercise of warrant)
January 6, 1996 56,054 Equus, Inc. (cashless exercise of warrant)
January 8, 1996 10,000 $ 30,000 Richard D. Polson (exercise of warrant)
January 8, 1996 87,600 $ 262,800 Sanders, Morris, Mundy, Inc. (exercise of warrant)
January 12, 1996 35,927 Mitsui Nevitt Capital Corporation (cashless exercise of warrant)
January 19, 1996 14,063 $ 51,049 Richard Van Hattem (exercise of warrant)
January 23, 1996 5,000 $ 30,000 Robert G. Rader (exercise of warrant)
February 2, 1996 157,073 Trilon Dominion Partners (cashless exercise of warrant)
February 8, 1996 5,000 Jeffery J. Jorgenson (conversion of Series D Preferred Stock)
February 28, 1996 15,000 $ 45,000 Richard D. Polson (exercise of warrant)
March 3, 1996 2,714 Wanda Bell (conversion of 7% Preferred Stock)
March 5, 1996 5,000 Sheldon Stein (conversion of Series D Preferred Stock)
March 14, 1996 10,000 David Nagelberg (conversion of Series D referred Stock)
March 20, 1996 4,285 Ronald Watkins (conversion of 7% Preferred Stock)
April 15, 1996 44,706 John M. Cronin (conversion of royalty agreement)
April 15, 1996 44,706 Jennifer D. Cronin (conversion of royalty agreement)
April 15, 1996 44,706 Pamela K. Shourd (conversion of royalty agreement)
April 15, 1996 44,706 John D. Shourd (conversion of royalty agreement)
April 15, 1996 25,882 Susan K. Roach (conversion of royalty agreement)
April 15, 1996 2,353 Kristin L. Witt (conversion of royalty agreement)
April 15, 1996 2,353 Terry L. Witt (conversion of royalty agreement)
May 1, 1996 95,274 St. Andrew Trust PLC (conversion of note)
May 2, 1996 320,833 IPP 92, L.P. (conversion of note)
May 3, 1996 23,751 Equus, Inc. (inducement shares issued for accelerated conversion of 9%
Preferred Stock)
May 10, 1996 19,054 JO Hambro Investment Management, Ltd. (conversion of note)
May 10, 1996 190,548 JO Hambro & Partners Consolidated Venture Trust (conversion of note)
May 24, 1996 57,164 Foreign and Colonial (conversion of note)
May 28, 1996 723 Wayne Thompson (employee bonus)
May 30, 1996 50,000 Semper Investments, Ltd. (cashless exercise of warrant)
May 30, 1996 85,000 Petrotech International, Ltd. (cashless exercise of warrant)
May 30, 1996 6,297 First Hemisphere Corporation (cashless exercise of warrant)
June 7, 1996 50,000 Semper Investments, Ltd. (cashless exercise of warrant)
</TABLE>
12
<PAGE> 13
<TABLE>
<CAPTION>
<S> <C> <C> <C>
June 20, 1996 190 Wayne Thompson (employee bonus)
June 21, 1996 246,154 $ 2,000,000 Roger A. Ramsey (employee purchase of common stock)
June 21, 1996 246,154 $ 2,000,000 Thomas H. Van Weelden (employee purchase of common stock)
August 26, 1996 6,211 Semper Investments, Ltd. (cashless exercise of warrant)
August 26, 1996 48,018 Petrotech International, Ltd. (cashless exercise of warrant)
September 10, 1996 300,000 IPP 92, L.P. (conversion of note)
September 24, 1996 50,000 IPP 92, L.P. (conversion of note)
October 9, 1996 1,108 John Miller (cashless exercise of warrant)
November 12, 1996 733,752 Merrill Lynch World Income Fund (conversion of 9% Preferred Stock)
November 12, 1996 314,465 Convertible Holdings, Inc. (conversion of 9% Preferred Stock)
November 20, 1996 4,192 Merrill Lynch World Income Fund (conversion of 9% Preferred Stock)
November 20, 1996 1,886 Convertible Holdings, Inc. (conversion of 9% Preferred Stock)
December 16, 1996 1,000 Kyle Ray (conversion of 7% Preferred Stock)
December 20, 1996 4,364 Eric Cash (employee bonus)
December 30, 1996 14,600,000 Laidlaw Transportation, Inc. (acquisition of non- hazardous solid waste
operations of Laidlaw)
1996 NOTES
December 5, 1996 $525,000,000 $525,000,000 Various institutional investors(1)
WARRANT
December 30, 1996 20,400,000 Laidlaw Transportation, Inc. (acquisition of non-hazardous solid waste
operations of Laidlaw)
</TABLE>
- -----------
(1) Goldman, Sachs & Co., CS First Boston and Citicorp Securities, Inc.
acted as placement agents in this private offering.
13
<PAGE> 14
ITEM 6. SELECTED FINANCIAL DATA
The selected financial data presented below as of and for the five
years ended December 31, 1996 are derived from the Company's Consolidated
Financial Statements, which have been audited by Arthur Andersen LLP,
independent public accountants. The statement of operations, balance sheet and
other data have been restated to give effect to transactions completed in 1995
and 1996, that were accounted for using the pooling-of-interests method for
business combinations. See Note 2 to the Company's Consolidated Financial
Statements. These selected financial data should be read in conjunction with
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the Company's Consolidated Financial Statements and the notes
thereto, included elsewhere herein. The Company has not paid dividends on its
Common Stock, does not anticipate paying any dividends on its Common Stock in
the foreseeable future, and is prohibited under the terms of the Company's
long-term indebtedness from paying such dividends. All amounts are in thousands
except per share amounts, number of shares and percentages.
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------------------------------------------------------
1992 1993 1994 1995 1996
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues .............................. $ 77,686 $ 108,948 $ 158,354 $ 217,544 $ 246,679
Cost of operations .................... 49,661 68,374 98,086 120,738 138,437
Selling, general and
administrative expenses ............ 13,369 18,278 32,564 36,708 38,602
Depreciation and
amortization expense ................. 7,991 10,637 16,931 25,779 31,470
Acquisition related costs (1) ......... -- -- -- 1,531 91,693
Unusual items (2) ..................... -- -- 2,100 -- 5,744
------------ ------------ ------------ ------------ ------------
Operating income (loss) ............... 6,665 11,659 8,673 32,788 (59,267)
Interest income ....................... (201) (310) (1,073) (716) (2,110)
Interest expense ...................... 4,580 7,633 13,441 11,372 9,257
------------ ------------ ------------ ------------ ------------
Income (loss) before income taxes ..... 2,286 4,336 (3,695) 22,132 (66,414)
Income tax expense (benefit) .......... 717 1,694 (689) 9,751 (399)
------------ ------------ ------------ ------------ ------------
Income (loss) before extraordinary item 1,569 2,642 (3,006) 12,381 (66,015)
Extraordinary loss, net of income tax
benefit of $1,900 in 1994
and $8,940 in 1996 ................. -- -- (3,029) -- (13,412)
------------ ------------ ------------ ------------ ------------
Net income (loss) ..................... 1,569 2,642 (6,035) 12,381 (79,427)
Preferred dividends ................... (310) (927) (3,773) (4,070) (1,073)
Conversion fee on equity
securities converted(3) ............ -- -- -- (2,151) --
------------ ------------ ------------ ------------ ------------
Net income (loss) to common
shareholders ....................... $ 1,259 $ 1,715 $ (9,808) $ 6,160 $ (80,500)
============ ============ ============ ============ ============
Net income (loss) per share:
Income (loss) before
extraordinary loss ................. $ 0.07 $ 0.08 $ (0.27) $ 0.15 $ (1.15)
Extraordinary loss ................. -- -- (0.12) -- (0.23)
------------ ------------ ------------ ------------ ------------
Income (loss) ...................... $ 0.07 $ 0.08 $ (0.39) $ 0.15 $ (1.38)
============ ============ ============ ============ ============
Weighted average common and
common equivalent shares ........... 19,276,886 22,572,468 25,028,107 40,046,459 58,422,581
============ ============ ============ ============ ============
</TABLE>
14
<PAGE> 15
BALANCE SHEET DATA:
<TABLE>
<CAPTION>
December 31,
-----------------------------------------------------------
1992 1993 1994 1995 1996
-------- -------- -------- -------- ----------
<S> <C> <C> <C> <C> <C>
Cash and cash equivalents ......... $ 5,887 $ 3,812 $ 5,223 $ 4,016 $ 50,094
Working capital (deficit) ......... (428) 3,892 (13,491) (37,338) 27,076
Property and equipment, net ....... 75,928 94,208 216,271 302,352 706,752
Goodwill .......................... 22,398 34,880 76,059 88,429 856,108
Total assets ...................... 135,946 159,926 356,875 458,706 2,317,549
Total long-term debt,
net of current portion ......... 56,226 61,019 166,252 186,373 1,148,509
Stockholders' equity .............. 51,323 70,277 89,972 136,305 275,558
Long-term debt to
total capitalization ........... 0.52 0.46 0.65 0.58 0.81
</TABLE>
- -------------
(1) Acquisition related costs of $84.6 million were incurred in 1996 in
connection with the Laidlaw Acquisition for environmental related
matters, asset impairments and abandonments, acquisition related
liabilities, litigation matters, relocation and transition costs and
bonuses, and other integration costs related to companies acquired.
Acquisition related costs of $7.1 million were incurred in 1996 for
transaction and integration costs related to 5 small 1996 acquisitions.
Acquisition related costs of $1.5 million were incurred in 1995 for
transaction and integration costs related to 1995 acquisitions.
Acquisition related costs incurred in 1992 through 1994 for transaction
and integration costs related to acquisitions made in those years were
immaterial. See Note 2 to the Company's Consolidated Financial
Statements.
(2) In December 1996 the Company recorded $5.7 million in unusual items
related to ongoing investigation and remediation of the Company's
Norfolk landfill and other non-recurring valuation adjustments. In
December 1994 the Company recorded a $2.1 million unusual item related
to the Company's Norfolk landfill.
(3) A non-cash conversion fee of $2.2 million was incurred in the fourth
quarter 1995 as a result of an inducement offered by the Company to
holders of certain convertible preferred stock and convertible
subordinated notes to exercise their conversion option to receive
Allied common stock. The inducement fee consisted of payment of
dividends or interest from the conversion date through the first call
or redemption date of each convertible security. Approximately 7.8
million shares of common stock were issued for conversion and
approximately 285,000 shares were issued for the conversion fee.
15
<PAGE> 16
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the
Company's Consolidated Financial Statements and the notes thereto, included
elsewhere herein.
INTRODUCTION
The Company has experienced significant growth, a substantial portion
of which has resulted from the acquisition of solid waste businesses. Since
January 1, 1992, the Company has completed 96 acquisitions including the Laidlaw
Acquisition. In 1996, the Company acquired 22 businesses including the Laidlaw
Acquisition and subsequent to 1996 it has acquired 2 businesses. See Note 2 to
the Company's Consolidated Financial Statements. The Company's Consolidated
Financial Statements have been restated to reflect the acquisition of companies
accounted for using the pooling-of-interests method for business combinations.
The majority of the acquisitions were accounted for under the purchase method
for business combinations and, accordingly, the results of operations for such
acquired businesses are included in the Company's financial statements only from
the applicable date of acquisition. As a result, the Company believes its
historical results of operations for the periods presented are not directly
comparable.
On December 30, 1996, the Company completed the acquisition of
substantially all of the non-hazardous solid waste management business conducted
by Laidlaw in the United States and Canada, for total consideration of
approximately $1.5 billion comprised of $1.2 billion cash, 14.6 million shares
of Common Stock, warrants to acquire 20.4 million shares of Common Stock, and
two junior subordinated debentures with an aggregate face amount of $318
million. The cash consideration was financed from the proceeds of the Senior
Credit Facility and the sale of the 1996 Notes.
On March 16, 1997, pursuant to a Share Purchase Agreement with USA
Waste, the Company sold to USA Waste all of the Canadian non-hazardous solid
waste management operations of the Company for approximately $518 million. The
Company used the proceeds from the Canadian Sale to pay down approximately $517
million in debt under the Senior Credit Facility. The Company acquired the
Canadian operations in connection with the Laidlaw Acquisition.
GENERAL
Revenues. The Company's revenues are attributable primarily to fees
charged to customers for waste collection, transfer, recycling and disposal
services. The Company's collection services are generally provided under direct
agreements with its customers or pursuant to contracts with municipalities.
Commercial and municipal contract terms, where used, generally range from 1 to 5
years and commonly have automatic renewal options. The Company's landfill
operations include both Company-owned landfills and those operated for
municipalities for a fee. The Company is fully integrated in each geographic
region in which it is located as it provides collection, transfer and disposal
services. The tables below show for the periods indicated the percentage of the
Company's total reported revenues attributable to services provided and to
geographic region:
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------
1994 1995 1996
------ ------ ------
<S> <C> <C> <C>
Collection(1) ....... 69.9% 64.7% 61.9 %
Transfer ............ 8.4 9.5 8.5
Landfill(1) ......... 14.5 18.3 22.0
Other ............... 7.2 7.5 7.6
------ ------ ------
Total Revenues .. 100.0% 100.0% 100.0%
====== ====== ======
</TABLE>
16
<PAGE> 17
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------
1994 1995 1996
------ ------ ------
<S> <C> <C> <C>
Midwest................. 48.7% 52.2% 50.0%
Southeast............... 30.2 28.0 30.6
Southwest............... 21.1 19.8 19.4
------ ------ ------
Total Revenues...... 100.0% 100.0% 100.0%
====== ====== ======
</TABLE>
- ------------------
(1) The portion of collection revenues attributable to disposal charges for
waste collected by the Company and disposed at the Company's landfills
have been excluded from collection revenues and included in landfill
revenues.
The Company's strategy is to develop vertically integrated operations
to ensure internalization of waste it collects and thus realize higher margins
from its operations. By disposing of waste at Company-owned and/or operated
landfills, the Company retains the margin generated through disposal operations
that would otherwise be earned by third-party landfills. Approximately 71% of
Company-collected waste is disposed of at Company-owned and/or operated
landfills as measured using disposal costs in 1996. After taking into account
the Laidlaw Acquisition, this measure is expected to be approximately 60%. In
addition, transfer stations are an integral part of the disposal process. The
Company locates its transfer stations in areas where its landfills are outside
of the population centers in which it collects waste. Such waste is transloaded
and economically transported to its landfills. Transfer and landfill revenues as
a percentage of total revenues increased from 8.4% and 14.5% in 1994 to 8.5% and
22% in 1996, respectively, which reflects the continued implementation of the
Company's strategy.
Expenses. Cost of operations includes labor, maintenance and repairs,
equipment and facility rent, utilities and taxes, the costs of ongoing
environmental compliance, safety and insurance, disposal costs and costs of
independent haulers transporting Company waste to the disposal site. Disposal
costs include certain landfill taxes, host community fees, payments under
agreements with respect to landfill sites that are not owned, landfill site
maintenance, fuel and other equipment operating expenses and accruals for
estimated closure and post-closure monitoring expenses anticipated to be
incurred in the future.
Selling, general and administrative expenses include management,
clerical and administrative compensation and overhead, sales costs, community
relations expenses and provisions for estimated uncollectible accounts
receivable and potentially unrealizable acquisition costs.
Depreciation and amortization expense includes depreciation of fixed
assets and amortization of landfill airspace, goodwill and other intangible
assets.
In connection with potential acquisitions, the Company incurs and
capitalizes certain transaction and integration costs which include stock
registration, legal, accounting, consulting, engineering and other direct costs.
When an acquisition is completed and is accounted for using the
pooling-of-interests method for business combinations, these costs are charged
to the statement of operations as acquisition related costs. When a completed
acquisition is accounted for using the purchase method for business
combinations, these costs are capitalized. The Company routinely evaluates
capitalized transaction and integration costs and expenses those costs related
to acquisitions not likely to occur. Indirect acquisition costs, such as
executive salaries, general corporate overhead and other corporate services, are
expensed as incurred.
Certain direct landfill development costs, such as engineering,
upgrading, construction and permitting costs, are capitalized and amortized
based on consumed airspace. The Company believes that the costs associated with
engineering, owning and operating landfills will increase in the future as a
result of federal, state and local regulation and a growing community awareness
of the landfill permitting process. Although there can be no assurance, the
Company believes that it will be able to implement price increases sufficient to
offset these increased expenses. All indirect landfill development costs, such
as executive salaries, general corporate overhead, public affairs and other
corporate services, are expensed as incurred.
17
<PAGE> 18
Accrued closure and post-closure costs represent an estimate of the
current value of the future obligation associated with closure and post-closure
monitoring of non-hazardous solid waste landfills currently owned and/or
operated by the Company. Site specific closure and post-closure engineering cost
estimates are prepared annually for landfills owned and/or operated by the
Company for which it is responsible for closure and post-closure. The present
value of estimated future costs are accrued based on accepted tonnage as
landfill airspace is consumed. Discounting of future costs is applied where the
Company believes that both the amounts and timing of related payments are
reliably determinable. The Company periodically updates its estimates of future
closure and post-closure costs. The impact of changes which are determined to be
changes in estimates are accounted for on a prospective basis.
The net present value of the closure and post-closure commitment is
calculated assuming inflation of 3.5% and a risk-free capital rate of 7.0%.
Discounted amounts previously recorded are accreted to reflect the effects of
the passage of time. The Company's current estimate of total future payments for
closure and post-closure is $467 million while the present value of such
estimate is $181 million. At December 31, 1995 and 1996, accruals for landfill
closure and post-closure costs (including costs assumed through acquisitions)
were approximately $10.5 million and $107.5 million. The accruals reflect
relatively young landfills with estimated remaining lives, based on current
waste flows, that range from 1 to over 75 years, and an estimated average
remaining life of greater than 30 years.
RESULTS OF OPERATIONS
The following table sets forth the percentage relationship that the
various items bear to revenues and the percentage of change in dollar amounts
for the periods indicated. The statement of operations data have been restated
to give effect to acquisitions that were accounted for using the
pooling-of-interests method for business combinations. See Note 2 to the
Company's Consolidated Financial Statements.
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------------------------------
1995 1996
Compared Compared
to 1994 to 1995
% Change % Change
1994 1995 in Amounts 1996 in Amounts
------- ------ ---------- ------- ----------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues ....................................... 100.0% 100.0% 37.4% 100.0% 13.4%
Cost of operations ............................. 61.9 55.5 23.1 56.1 14.7
Selling, general and administrative expenses ... 20.6 16.9 12.7 15.6 5.2
Depreciation and amortization expense .......... 10.7 11.9 52.3 12.8 22.1
Acquisition related costs ...................... -- 0.7 100.0 37.2 5,889.1
Unusual costs .................................. 1.3 -- (100.0) 2.3 100.0
---- ----- -----
Operating income ............................... 5.5 15.0 278.0 (24.0) (280.8)
Interest expense, net .......................... 7.8 4.9 (13.8) 2.9 (32.9)
Income tax expense, (benefit) .................. (0.4) 4.5 1,515.2 (0.2) (104.1)
Extraordinary loss, net of income tax benefit .. 1.9 -- (100.0) 5.4 100.0
---- ----- -----
Net income (loss) ............................ (3.8)% 5.6% 305.2% (32.1)% (741.5)%
====== ===== ======
</TABLE>
18
<PAGE> 19
YEARS ENDED DECEMBER 31, 1996 AND 1995
Revenues. Revenues in 1996 were $246.7 million compared to $217.5
million in 1995, an increase of 13.4%. Approximately 4.3% of the increase in
revenues is attributable to acquisitions and 9.1% is attributable to internal
growth. Revenues of $9.4 million for 1996 were generated from companies acquired
subsequent to December 1994, while increases in revenue attributable to existing
operations amounted to $19.8 million. Average price increases as a percentage of
revenue were approximately 3% of revenue while the remainder of internal growth
was from volume.
Cost of Operations. Cost of operations in 1996 was $138.4 million
compared to $120.7 million in 1995, an increase of 14.7%. This increase in cost
of operations was primarily attributable to the increase in revenues described
above. As a percentage of revenues, cost of operations increased to 56.1% in
1996 from 55.5% in 1995. Operating costs were affected by an increase in the
percentage of waste internalized to 71% in 1996 from 62% in 1995 which resulted
in a decrease in third-party disposal costs as a percent of revenue. Cost of
operations were also effected by a significant increase in municipal solid waste
volumes offset by a decrease in higher priced special waste volumes. This change
in revenue mix had the effect of increasing the cost of disposal relative to
revenues.
Selling, General and Administrative Expenses. SG&A expenses increased
to $38.6 million in 1996 compared to $36.7 million in 1995, an increase of 5.2%.
As a percentage of revenues, SG&A decreased to 15.6% in 1996 from 16.9% in 1995.
The increase in SG&A expense resulted from expenses associated with acquired
companies and expenses incurred in connection with the Company's increase in
personnel and other expenses related to the anticipated growth of the Company as
it continues to acquire companies. The decrease in SG&A as a percentage of
revenues can be attributed to an increase in revenue producing assets while
corporate level personnel and other related expenses increased moderately.
Depreciation and Amortization Expense. Depreciation and amortization in
1996 was $31.5 million compared to $25.8 million in 1995, an increase of 22.1%.
The increase in depreciation and amortization expense is due to acquisitions and
capital expenditures. Before the Laidlaw Acquisition, fixed assets increased to
$442.2 million at December 31, 1996 from $366.6 million at December 31, 1995 and
goodwill increased to $110.7 million at December 31, 1996 from $98.1 million at
December 31, 1995. As a percentage of revenues, depreciation and amortization
increased to 12.8% in 1996 from 11.9% in 1995. This increase is primarily
because amortization of landfill airspace as a percentage of revenue increased
to 3.2% in 1996 from 2.7% in 1995 resulting from an increase in the rate of
waste internalization.
Acquisition Related Costs. In connection with the Laidlaw Acquisition,
the Company incurred approximately $84.6 million in charges primarily associated
with the acquisition, which include $51.5 million of environmental related
matters, $18.4 million of asset impairments and abandonments, and $14.7 million
of acquisition liabilities, of which $2.0 million relates to litigation matters,
$5.4 million relates to relocation and transition costs and bonuses, $3.8
million relates to taxes, claims and assessments and other integration costs,
and $3.5 million relates to acquired accounts receivable considered
uncollectible.
In connection with the Laidlaw Acquisition, Allied engaged an
independent environmental consulting firm to assist in conducting an
environmental assessment of the real property owned by the acquired subsidiaries
or third-parties, and properties under the management of the acquired companies.
Several contaminated landfills and other properties have been identified, two of
which are owned by subsidiaries of the Company, that would require those
subsidiaries to incur costs for incremental closure and post-closure measures,
remediation activities and litigation in the future. The costs of performing the
investigation, design, remediation and the allocation of responsibility to the
subsidiaries of Allied vary significantly between sites. Based on information
available to the Company, Allied recorded a provision of $51.5 million for
environmental matters, including closure and post-closure costs, in the 1996
statement of operations and expects these amounts to be disbursed over the next
30 years.
19
<PAGE> 20
As a result of the Laidlaw Acquisition, Allied increased its revenue
base by approximately 400% and entered into 14 new markets where it believes
that it can execute its operating strategy. In connection with the significant
increase in size and the redirection of its strategic operating emphasis, Allied
determined that certain asset values have become impaired as they will provide
no further benefit to Company. Included among the asset impairments are costs of
$10.8 million related to over 50 noncompetition agreements in several markets
where the counterparty no longer poses a significant threat, costs of $4.8
million for discontinued facilities and costs of $2.8 million for market
development activities no longer being pursued.
Costs of $7.1 million were incurred in 1996 compared to $1.5 million in
1995 for transaction and integration costs directly related to acquisitions
accounted for using the pooling-of-interests method for business combinations.
Unusual Items. In December 1996 the Company recorded $5.7 million in
unusual items including $2.0 million in connection with the ongoing
investigation and remediation of the Company's Norfolk landfill and $3.7 million
of other non-recurring valuation adjustments.
Net Interest Expense. Net interest expense was $7.1 million in 1996
compared to $10.6 million in 1995, a decrease of 32.9%. The decrease in net
interest expense is partially due to the conversion of subordinated debt into
Common Stock in the fourth quarter of 1995 which resulted in a reduction to
annual interest charges and the refinancing of the 1994 Notes (as defined
herein) on July 31, 1996 resulting in a decrease in the interest rate from 12%
to 7% for the months of August through December 1996. Also, interest capitalized
in 1996 was $13.0 million compared to $11.1 million in 1995.
Conversion Fees. A non-cash conversion fee of $2.2 million was incurred
in the fourth quarter of 1995 as a result of an inducement offered by the
Company to holders of certain convertible preferred stock and convertible
subordinated notes to exercise their conversion option to receive Common Stock.
The inducement fee consisted of payment of dividends or interest from the
conversion date through the first call or redemption date of each convertible
security. Approximately 7.8 million shares of Common Stock were issued for
conversion and approximately 285,000 were issued for the conversion fee.
Income Taxes. Income taxes reflect a benefit at a 0.6% effective income
tax rate for 1996 which deviates from the federal statutory rate of 35% due
primarily to the treatment of expenses for book purposes that, when recognized
for tax purposes, may produce tax goodwill in excess of book goodwill. Other
items impacting the Company's effective tax rate for both 1996 and 1995 include
the differences in the treatment of goodwill for book and tax purposes, state
income taxes, and other permanent differences. See Note 10 to the Consolidated
Financial Statements.
Extraordinary Loss. On July 31, 1996, Allied completed a tender offer
(the "Tender Offer") for substantially all of the 1994 Notes at the redemption
price of $1,157.50 per $1,000 note. An extraordinary charge related to the
Tender Offer of approximately $18.4 million ($11.0 million net of income tax
benefit), was charged to earnings in the third quarter of 1996. In connection
with the Laidlaw Acquisition, the Company refinanced its $300 million senior
revolving credit facility and recognized an extraordinary charge of
approximately $4.0 million ($2.4 million net of income tax benefit) was charged
to earnings in the fourth quarter of 1996.
20
<PAGE> 21
YEARS ENDED DECEMBER 31, 1995 AND 1994
Revenues. Revenues in 1995 were $217.5 million compared to $158.4
million in 1994, an increase of 37.4%. The increase in revenues is due primarily
to the effects of acquisitions as well as price and volume increases
attributable to existing operations. Revenues of $34.4 million in 1995 were
generated from companies acquired since January 1994, while increases in
revenues attributable to existing operations amounted to $24.7 million. Average
price increases as a percentage of revenue were approximately 5.7%.
Cost of Operations. Cost of operations in 1995 was $120.7 million
compared to $98.1 million in 1994, an increase of 23.1%. This increase in costs
was attributable primarily to increase in revenues described above. As a
percentage of revenues, cost of operations decreased to 55.5% in 1995 from 61.9%
in 1994. The resulting increase in margins was due primarily to better
internalization of waste flows in 1995 as compared to 1994 during which
Allied-collected waste disposed at Allied-owned and/or operated landfills, as
measured using disposal costs, was 34.8% of revenue compared to 62.0% for 1995.
Gross profit also increased because of increased operating efficiencies
resulting from improvements made to vehicles and equipment through capital
expenditures made in 1994 and 1995.
Selling, General and Administrative Expenses. SG&A expenses increased
to $36.7 million in 1995 compared to $32.6 million in 1994, an increase of
12.7%. As a percentage of revenues, SG&A decreased to 16.9% in 1995 from 20.6%
in 1994. The increase in SG&A expenses resulted from expenses associated with
acquired companies and expenses incurred in connection with Allied's increase in
personnel and other expenses related to the anticipated growth of Allied as it
continues to acquire companies. The decrease in SG&A as a percentage of revenues
can be attributed to a significant increase in revenue producing assets while
corporate level personnel and other related expenses increased only moderately.
Depreciation and Amortization Expense. Depreciation and amortization
expense in 1995 was $25.8 million compared to $16.9 million in 1994, an increase
of 52.3%. The increase in depreciation and amortization expense is due to
acquisitions and capital expenditures. Fixed assets increased to $366.6 million
at December 31, 1995 from $261.4 million at December 31, 1994 and goodwill
increased to $98.1 million at December 31, 1995 from $84.1 million at December
31, 1994. As a percentage of revenues, depreciation and amortization increased
to 11.9% in 1995 from 10.7% in 1994. This increase in primarily because
amortization of landfill airspace as a percentage of revenue increased to 2.7%
in 1995 from 1.0% in 1994 resulting from an increase in the rate of waste
internalization.
Acquisition Related Costs. Costs of $1.5 million were incurred in
September 1995 for transaction and integration costs related to acquisitions
accounted for using the pooling-of-interests method for business combinations.
During 1994, no acquisitions were accounted for using this method.
Unusual Items. In December 1994 the Company recorded a provision of
$2.1 million, in excess of the closure and post-closure reserves recorded in the
normal course of business, to recognize the estimated costs of additional
closure, post-closure and remedial measures related to its Norfolk landfill.
Net Interest Expense. Net interest expense increased to $10.6 million
in 1995 compared to $12.4 million in 1994, a decrease of 13.8%. Interest charges
decreased in 1995 compared to 1994 because of an increase in the amount of
capitalized interest to $11.1 million in the 1995 period compared to $3.5
million in 1994. The amount of interest capitalized increased in 1995 because of
an increase in transfer stations and landfill airspace under development or
under application for development compared to 1994 and the acquisition of
additional landfills subsequent to 1994. The decrease in interest charges was
offset by an increase in the interest rate on the 1994 Notes, from 10.75% in
1994 to 12% in January 1995 and an increase in interest bearing debt to
approximately $223.9 million at December 31, 1995 from approximately $188.0
million at December 31, 1994, due primarily to acquisitions and capital
expenditures.
21
<PAGE> 22
Conversion Fees. A non-cash conversion fee of $2.2 million was incurred
in the fourth quarter of 1995 as a result of an inducement offered by Allied to
holders of certain convertible securities to exercise their conversion option to
receive Common Stock. The inducement fee consisted of payment of dividends or
interest from the conversion date through the first call or redemption date of
each convertible security. Approximately 7.8 million shares of Common Stock were
issued for conversion and approximately 285,000 were issued for the conversion
fee.
Income Taxes. Income taxes reflect a 44.1% effective income tax rate in
1995 compared to a 18.6% effective rate in 1994. Allied's effective tax rate in
1995 and 1994 deviates from the federal statutory rates of 35% and 34%,
respectively, due to the effects of differences in the treatment of goodwill for
book and tax purposes, state income taxes, and other permanent differences.
Extraordinary Items. In connection with the Securities Purchase
Agreement between the Company and TPG Partners, L.P. ("TPG") dated October 27,
1994, as amended (the "TPG Agreement"), the Company solicited and obtained
consents from a majority of the holders of the 1994 Notes causing modifications
to the indenture agreement and the execution of a supplemental indenture (the
"Supplemental Indenture"). Among other things, the Supplemental Indenture
increased the Company's restricted borrowing capacity (with certain limitations)
under current and future revolving credit agreements and lease lines from a
total of $35 million to $120 million, deleted certain borrowing restrictions,
changed certain financial ratio covenants and increased the per annum rate of
interest from 10.75% to 12.0%. The execution of the Supplemental Indenture,
which was effective January 1995, was accounted for as an early extinguishment
of debt. Accordingly, capitalized deferred debt issuance costs related to the
original indenture were written off as of December 31, 1994 and an extraordinary
charge of $4.6 million ($2.8 million net of income tax benefit) was recorded.
Additionally, in the first quarter of 1994, an extraordinary charge of $334,000
($206,000 net of income tax benefit) was recognized as result of the early
extinguishment of various debt instruments using the proceeds from the 1994
Notes.
LIQUIDITY AND CAPITAL RESOURCES
Historically, the Company has satisfied its acquisition, capital
expenditure and working capital needs primarily through bank financing, public
offerings and private placements of debt and equity securities. Between January
1, 1994 and December 31, 1996, the Company completed the $1.275 billion Senior
Credit Facility (of which $517 million was repaid with proceeds from the
Canadian Sale in March 1997), a $525 million private placement of the 1996
Notes, a $100 million public offering of the 1994 Notes (substantially all of
which were repurchased pursuant to the Tender Offer in July 1996), a $50 million
private placement of Common Stock, a $300 million senior revolving credit
facility (all debt under which was repaid in December 1996), and a $48 million
public equity offering. Because of the capital intensive nature of the solid
waste industry, the Company has used, and expects to continue using amounts in
excess of the cash generated from operations to fund acquisitions and capital
expenditures, including landfill development. In connection with acquisitions,
the Company has assumed or incurred indebtedness with relatively short-term
repayment schedules, thereby increasing its current and medium-term liabilities.
Additionally, operating equipment has been acquired using financing leases which
have short and medium-term maturities. As a result, the Company has periodically
had low levels of working capital or working capital deficits.
22
<PAGE> 23
During the years ended December 31, 1994, 1995 and 1996, the Company's
cash flows from operating, investing and financing activities were as follows
(in millions):
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------
1994 1995 1996
-------- ------- ----------
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income (loss) .................................... $ (6.0) $ 12.4 $ (79.4)
Extraordinary loss on early extinguishments of debt .. 4.9 -- 22.4
Acquisition related costs ............................ -- 1.5 91.7
Unusual items ........................................ 2.1 -- 5.7
Non-cash operating expenses(1) ....................... 16.9 35.9 36.9
Loss on sale of fixed assets ......................... 0.7 0.3 1.9
Increase in operating assets and liabilities, net .... (1.7) (12.8) (44.1)
-------- ------- ----------
Cash provided by operating activities .............. 16.9 37.3 35.1
-------- ------- ----------
INVESTING ACTIVITIES:
Cost of acquisitions, net of cash acquired ........... (49.2) (18.7) (1,356.6)
Capital expenditures ................................. (46.6) (55.6) (43.7)
Proceeds from sale of fixed assets ................... 1.4 1.1 0.6
Other ................................................ 2.0 (0.4) --
-------- ------- ----------
Cash used for investing activities ................. (92.4) (73.6) (1,399.7)
-------- ------- ----------
FINANCING ACTIVITIES:
Net proceeds from sale and
redemption of preferred stock and common stock ..... 15.0 30.6 48.1
Net proceeds from long-term debt ..................... 126.3 66.6 1,809.7
Payments of long-term debt ........................... (59.5) (55.8) (445.8)
Other ................................................ (4.9) (6.3) (1.3)
-------- ------- ----------
Cash provided by financing activities .............. 76.9 35.1 1,410.7
-------- ------- ----------
Increase (decrease) in cash .......................... $ 1.4 $ (1.2) $ 46.1
======== ======= ==========
</TABLE>
- ----------
(1) Consists principally of provisions for depreciation and amortization,
landfill closure and post-closure costs, doubtful accounts, potentially
unrealizable acquisition costs and deferred income taxes.
As of December 31, 1996, the Company had cash and cash equivalents of
$50.1 million. The Company's capital expenditure and working capital
requirements have increased significantly, reflecting the Company's rapid growth
by acquisition and development of revenue producing assets, and will increase
further as the Company continues to pursue its business strategy. During 1996
the Company completed the Laidlaw Acquisition for total consideration of
approximately $1.5 billion consisting of $1.2 billion cash, 14.6 million shares
of Common Stock, warrants to acquire 20.4 million shares of Common Stock, and
two junior subordinated debentures with an aggregate face amount of $318 million
and acquired 21 additional businesses for total consideration of approximately
$126.5 million of which approximately $73.9 million of such consideration was
paid in common stock and $3.6 million was paid in seller notes. Total annualized
revenues of the latter businesses are approximately $78.8 million. Subsequent to
December 31, 1996 the Company purchased 2 operating solid waste landfills with
estimated annual revenues of $26.8 million for an aggregate purchase price of
approximately $58.9 million of which approximately $6.5 million of such
consideration was paid in common stock. For the calendar year 1997, the Company
expects to spend approximately $126 million for capital, closure and
post-closure, and remediation expenditures relating to its landfill operations.
As the Company continues to acquire waste operations in 1997, additional capital
amounts will be required during 1997 for the acquisition of businesses and the
capital expenditure requirements related to those acquired businesses.
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<PAGE> 24
On December 31, 1996, the Company's debt structure consisted of $525
million of the 1996 Notes, amounts outstanding under the Senior Credit Facility
of approximately $975 million, and $110.7 million of Allied Canada Debentures.
In connection with the Canadian Sale, Allied repaid approximately $517 million
of the Senior Credit Facility. After giving effect to the Canadian Sale, there
is aggregate availability under the Senior Credit Facility of $300 million
pursuant to a revolving credit facility to be used for working capital, letters
of credit, acquisitions and other general corporate purposes. No more than $200
million of funded loans (excluding amounts outstanding pursuant to drawn letters
of credit) may be outstanding at one time, of which not more than $100 million
may be used for acquisitions. The indenture relating to the 1996 Notes and the
Senior Credit Facility contain financial and operating covenants and significant
restrictions on the ability of the Company to complete acquisitions, pay
dividends, incur indebtedness, make investments and take certain other corporate
actions. A substantial portion of the Company's available cash will be required
to be applied to service indebtedness, including indebtedness incurred to
finance the Laidlaw Acquisition, which is expected to include approximately $0.7
million for preferred stock dividends and approximately $126 million in annual
principal and interest payments (after giving effect to the payment of $517
million on the Senior Credit Facility after the Canadian Sale).
The Company is also required to provide financial assurances to
governmental agencies under applicable environmental regulations relating to its
landfill operations. These financial assurances include performance bonds,
letters-of-credit and trust deposits required principally to secure the
Company's landfill estimated closure and post-closure obligations and collection
contracts. At December 31, 1996, the Company had outstanding approximately $47.0
million of performance bonds, $99.5 million in letters-of-credit and $2.6
million of trust deposits. During calendar year 1997, the Company expects to be
required to provide approximately $227.6 million in financial assurance
obligations relating to its landfill operations. The Company expects that
financial assurance obligations will increase in the future as it acquires and
expands its activities and that a greater percentage of the financial assurances
will be comprised of letters-of-credit.
The Company has lease facilities (the "Lease Facilities") that allow it
to enter into equipment leases at rates ranging from similar term treasury note
rates plus 2.5% to 3.5% for terms of 36 to 84 months. In addition to equipment
leases outstanding at December 31, 1995 and 1996 of $32.7 million and $45.2
million, respectively, the Company had available lease commitments of $8.5
million and $11.9 million, respectively. The Company intends to enter into
master equipment lease facilities relating to the financing of the acquisition
of trucks and containers.
The Company expects that Subtitle D and other regulations that apply to
the non-hazardous waste disposal industry will require the Company, as well as
others in the industry, to alter operations and to modify or replace existing
facilities. Such expenditures have been and will continue to be substantial.
Further regulatory changes could accelerate expenditures for closure and
post-closure monitoring and obligate the Company to spend sums in addition to
those presently reserved for such purposes. These factors, together with the
other factors discussed above, could substantially increase the Company's
operating costs and impair the Company's ability to invest in its facilities.
The Company's ability to meet future capital expenditure and working
capital requirements, to make scheduled payments of principal of, to pay
interest on, or to refinance its indebtedness, and to fund capital amounts
required for the acquisition of businesses and the expansion of existing
businesses depends on its future performance, which, to a certain extent, is
subject to general economic, financial, competitive, legislative, regulatory and
other factors beyond its control. One of the primary factors impacting the
Company's future performance will be its ability to integrate the assets
acquired in the Laidlaw Acquisition after the Canadian Sale, and to reduce
redundancies and excess costs. These operations are significantly larger than
the Company's previous operations and represent a substantial increase in the
scope of the Company's business. Based upon the current level of operations and
anticipated growth, management of the Company believes that available cash flow,
together with available borrowing under the Senior Credit Facility, the Lease
Facilities and other sources of liquidity, will be adequate to meet the
Company's anticipated future requirements for working capital,
letters-of-credit, capital expenditures, scheduled payments of principal of and
interest on debt incurred under the Senior Credit Facility, interest on the 1996
Notes and capital amounts required for acquisitions and expansion. However, the
principal payments at maturity on the 1996 Notes may require refinancing. There
can be no assurance that the Company's
24
<PAGE> 25
business will generate sufficient cash flow from operations or that future
financings will be available in an amount sufficient to enable the Company to
service its indebtedness or to make necessary capital expenditures, or that any
refinancing would be available on commercially reasonable terms if at all.
Additionally, depending on the timing, amount and structure of any future
acquisitions and the availability of funds under the acquisition facility under
the Senior Credit Facility, the Company may need to raise additional capital to
fund the acquisition and integration of additional solid waste businesses. The
Company may raise such funds through additional bank financings or public or
private offerings of its debt and equity securities. There can be no assurance
that the Company will be able to secure such funding, if necessary, on favorable
terms, if at all. If the Company is not successful in securing such funding, the
Company's ability to pursue its business strategy may be impaired and results of
operations for future periods may be negatively affected.
SIGNIFICANT FINANCING EVENTS
In connection with the Laidlaw Acquisition, the Company and Allied
Waste North America, Inc., a wholly owned subsidiary of the Company ("Allied
NA") executed a $1.275 billion Credit Agreement (the "Credit Agreement") among
Goldman Sachs Credit Partners L.P., Credit Suisse and Citibank, N.A.
(collectively the "Agents") (the "Senior Credit Facility"). The Senior Credit
Facility was comprised of (i) a $300 million revolving credit facility; (ii) a
$475 million 5.5 year senior term loan; (iii) a $100 million 6.5 year
Amortization Extended Term Loan AXEL(TM)A; (iv) a $200 million 7.5 year
AXEL(TM)B; and (v) a $200 million 8.5 year AXEL(TM)C. Of the $300 million
available under the revolving credit facility, no more than $200 million may be
outstanding at one time, of which no more than $100 million may be used to
finance permitted acquisitions ("Acquisition Loans"), as defined in the Credit
Agreement, and no more than $150 million may be used for the issuance of standby
letters-of- credit. Borrowings under the revolving credit facility may be used
for permitted acquisitions, repay existing indebtedness or indebtedness assumed
through acquisition and for general corporate purposes. Acquisition Loans
outstanding as of September 2000 become payable quarterly, with a final maturity
of June 2002 and may not be re-borrowed after September 2000. Loans, other than
Acquisition Loans, outstanding under the revolving credit facility are payable
in June 2002. Borrowings under the senior term loan and the AXELs were use to
pay a portion of the cash purchase price of the Laidlaw Acquisition. Amounts
outstanding under the senior term loan and AXELs are payable quarterly,
beginning in June 1997, with final maturities ranging from June 2002 to June
2005. The Credit Agreement contains a number of covenants that, among other
things, require Allied NA to maintain certain financial ratios which commence
with the quarter ended March 31, 1997, and limit Allied NA's ability to make
acquisitions, purchase fixed assets above certain amounts, incur additional
indebtedness and liens, pay dividends except on certain preferred stock, make
optional prepayments on certain subordinated indebtedness, including the 1996
Notes, enter into certain transactions with affiliates or enter into a merger,
consolidation or sale of substantially all of Allied NA's assets. The Senior
Credit Facility is secured by a pledge of the stock of substantially all of
Allied NA's subsidiaries, liens on substantially all personal property and a
negative pledge of assets of Allied NA and its subsidiaries. In addition to the
security granted, the Agents reserve the right to file mortgages on all real
property of Allied NA and its subsidiaries at their sole discretion. The Senior
Credit Facility is guaranteed by the Company and all the subsidiaries of Allied
NA. Allied NA intends on using proceeds from the revolving credit facility to
make strategic acquisitions, repay indebtedness assumed through acquisitions,
and for general corporate purposes. As of December 31, 1996, Allied NA had no
funded loans outstanding and had issued approximately $46 million of standby
letters-of-credit, leaving $200 million available for funded loans and $104
million available for letters-of-credit. In connection with the Canadian Sale,
Allied paid approximately $517 million of the Senior Credit Facility. Payments
were made on a pro rata basis between the term loan and each of the AXEL
traunches as provided by the Credit Agreement.
25
<PAGE> 26
Also in connection with the Laidlaw Acquisition, Allied NA issued $525
million of 10.25% Senior Subordinated Notes due 2006 in a Rule 144A private
offering. Net proceeds from the sale of the 1996 Notes, after the underwriting
discount and other expenses, were approximately $509 million. The net proceeds
were used to pay a portion of the cash purchase price of the Laidlaw
Acquisition, repay amounts outstanding under the Company's previous $300 million
credit facility with Credit Suisse as agent, fund certain acquisitions and for
general corporate purposes. Allied NA has an obligation to offer fully
registered securities, pursuant to an exchange offer, that are substantially
identical to the 1996 Notes. If Allied NA fails to effect an exchange offer, or
if the registration statement relating to the exchange offer shall be withdrawn
by Allied NA before certain dates, Allied NA will be subject to penalty interest
in varying amounts ranging from 0.25% to 1.0% per annum on the principal amount
thereof as liquidated damages to the holders of the 1996 Notes. On February 28,
1997, Allied NA filed a registration statement relating to the exchange offer
with the Securities and Exchange Commission on Form S-4. The 1996 Notes cannot
be redeemed until December 1, 2001, except under certain circumstances. Prior to
December 1, 2001, the 1996 Notes are subject to redemption, at the option of
Allied NA, at the greater of (i) 100% of the principal amount of (ii) the sum of
the present values of the remaining scheduled payments of principal and interest
thereon discounted to maturity on a semiannual basis at a comparable treasury
yield plus 75 basis points, plus in each case accrued and unpaid interest to the
date of redemption. At any time prior to December 1, 1999, up to 33% of
principal amount of 1996 Notes will be redeemable, at the option of Allied NA,
from the proceeds of one or more public offerings of capital stock by the
Company at a redemption price of 110.25% of principal amount, plus accrued
interest. The 1996 Notes are guaranteed by the Company and substantially all of
Allied NA's subsidiaries, the guarantees of which are expressly subordinated to
the guarantees of Allied NA's Senior Credit Facility. The 1996 Notes contain
several covenants, the most restrictive of which limits Allied NA and its
subsidiaries' ability to incur additional indebtedness without complying with an
interest coverage ratio test. Other covenants contain limitations on payment of
dividends except for certain preferred stock, issuance of redeemable preferred
stock, transactions with affiliates, granting of liens and security interests,
sales of assets and the use of proceeds from sales of assets, mergers and
consolidations, and changes of control. The covenants do permit Allied NA to
incur certain indebtedness including the Senior Credit Facility, indebtedness
issued and/or assumed in permitted acquisitions and other indebtedness which is
limited to a certain percentage of Allied NA's total assets.
In connection with the Laidlaw Acquisition, Allied Waste Finance
(Canada) Ltd. ("Allied Finance") issued to Laidlaw: (i) the Allied Finance 7%
Debenture (the "Allied Finance 7% Debenture") and (ii) the Allied Finance Zero
Coupon Debenture (the "Allied Finance Zero Coupon Debenture", and together with
the Allied Finance 7% Debenture the "Allied Finance Debentures"). The principal
of the Allied Finance Debentures is payable in December 2008, subject to earlier
prepayment as described below. The Allied Finance 7% Debenture will bear
interest at the fixed rate of 7% per annum payable semi-annually, except for the
first three years during which the interest payments will be deferred. Laidlaw
and the Company have entered into a subscription agreement under which, at the
option of the Company, Laidlaw must subscribe to common stock of the Company in
equal dollar amounts of the interest and principal payments due on the Allied
Finance 7% Debenture. Before its maturity, the Allied Finance Zero Coupon
Debenture will not bear interest. For the first five years after issuance, the
Allied Finance 7% Debenture may not be prepaid by Allied Finance, subject to
change of control provisions described below. Following the fifth anniversary
and until maturity, Allied Finance will have the option to prepay the Allied
Finance 7% Debenture, in whole or in part, at a scheduled discount from the face
amount of the Allied Finance 7% Debenture. The Allied Finance Zero Coupon
Debenture is not pre-payable at the option of Allied Finance prior to it stated
maturity, subject to the change of control provision. Upon a change of control
(as defined in the Allied Finance Debentures), Allied Finance will be obligated
to offer to prepay the Allied Finance Debentures at a predetermined discount to
the face amount of each debenture, respectively. Subject to certain
subordination provisions contained in the Allied Finance Debentures, the
maturity of the Allied Finance Debentures may be accelerated if a default (as
defined in the Allied Finance Debentures) occurs. The Allied Finance Debentures
are unsecured obligations and do not contain any restrictive or financial
covenants. The Allied Finance Debentures are guaranteed by the Company on a
subordinated basis to the Senior Credit Facility and the 1996 Notes.
26
<PAGE> 27
In connection with Laidlaw Acquisition, the Company issued a warrant to
Laidlaw for the purchase of 20.4 million shares of common stock of the Company
at an exercise price of $8.25 per share (the "Warrant"). The Warrant expires in
December 2008. Laidlaw or any Laidlaw subsidiary may exercise the Warrant only
after the occurrence of a change of control of the Company. Laidlaw is permitted
to transfer the Warrant to any subsidiary of Laidlaw, but not to any other
affiliate of Laidlaw unless the transferee receives the Warrant pursuant to a
pro rata distribution of Warrants to all stockholders of all classes of
Laidlaw's outstanding capital stock. Laidlaw is permitted to transfer the
Warrant to anyone other than one of its affiliates, but only if, after the
transfer, the transferee and its affiliates beneficially own 9% or less of the
total number of shares of common stock of the Company then outstanding.
In January 1994, the Company issued $100 million of 10 3/4% senior
subordinated notes (the "1994 Notes"). The net proceeds from the sale of the
1994 Notes after underwriting discount and other expenses, were approximately
$95 million. In July 1996, the Company completed the Tender Offer and purchased
substantially all of its 1994 Notes at the redemption price of $1,157.50 per
$1,000 principal amount. In connection with the Tender Offer, the Company
recognized an extraordinary charge of $18.4 million ($11.0 million net of income
tax benefit), in the third quarter of 1996. The Company also received a consent
from a majority of the holders of the 1994 Notes to eliminate all substantive
financial covenants associated with the remaining 1994 Notes.
Simultaneously with the Tender Offer in July 1996, the Company
completed a new $300 million revolving credit facility which was extinguished on
December 30, 1996 in connection with the financing of the Laidlaw Acquisition.
The Company recognized an extraordinary charge of $4.0 million ($2.4 million net
of income tax benefit), in the fourth quarter.
On January 24, 1996, the Company completed a public offering of its
Common Stock. It issued 7.6 million shares for approximately $48 million net of
$5.2 million in underwriter discounts, commissions and offering costs. The net
proceeds from the offering were used to repay amounts outstanding under the
Company's outstanding credit agreement and for other general corporate purposes.
During 1995, the Company offered to holders of all of its Series D, 9%
and $90 convertible preferred stock and its 6% Convertible Subordinated notes an
inducement to exercise their conversion option to receive Allied Common Stock.
The inducement consisted of the payment of dividends and interest that the
holders of these securities would have received from the date of conversion
through the first call or redemption date of each security. In total, 7,757,056
shares of Common Stock were issued upon conversion. Substantially all of the
Series D preferred stock and 6% Convertible Subordinated notes were converted,
all but 5,029 shares of the 9% preferred stock was converted and all of the $90
preferred stock was converted. Accordingly, the Company's annual dividend and
interest requirements decreased by approximately $2.7 million and $0.8 million,
respectively. The inducement resulted in a 1995 conversion fee charge of
approximately $2.2 million paid in 285,000 shares of Common Stock.
On January 30, 1995, the Company obtained stockholder approval of the
issuance of 11,709,602 shares of Common Stock to TPG and an affiliate, for $50
million (less approximately $5.0 million of direct offering costs and other
costs related to an amendment to the 1994 Notes).
27
<PAGE> 28
DISCLOSURE REGARDING FORWARD LOOKING STATEMENTS
This "Management's Discussion and Analysis of Financial Condition and
Results of Operations" includes forward looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended ("Forward Looking Statements"). All
statements other than statements of historical fact included in this section,
are Forward Looking Statements. Although the Company believes that the
expectations reflected in such Forward Looking Statements are reasonable, it can
give no assurance that such expectations will prove to have been correct.
Generally, these statements relate to business plans or strategies, projected or
anticipated benefits or other consequences of such plans or strategies, number
of acquisitions and projected or anticipated benefits from acquisitions made by
or to be made by the Company, or projections involving anticipated revenues,
earnings, levels of capital expenditures or other aspects of operating results.
All phases of the Company operations are subject to a number of uncertainties,
risks and other influences, many of which are outside the control of the Company
and any one of which, or a combination of which, could materially affect the
results of the Company's operations and whether Forward Looking Statements made
by the Company ultimately prove to be accurate. Such important factors
("Important Factors") that could cause actual results to differ materially from
the Company's expectations are disclosed in this section and elsewhere in this
report. All subsequent written and oral Forward Looking Statements attributable
to the Company or persons acting on its behalf are expressly qualified in their
entirety by the Important Factors described below that could cause actual
results to differ from the Company's expectations.
Competition. The solid waste collection and disposal business is highly
competitive. The Company competes with numerous waste management companies, a
number of which have significantly larger operations and greater resources than
the Company. The Company also competes with those counties and municipalities
that maintain their own waste collection and disposal operations. Forward
Looking Statements assume that the Company will be able to effectively compete
with the other waste management companies and municipalities.
Acquisition and Internal Development Targets. The Company's ongoing
acquisition program is a key element of its expansion strategy. In addition,
obtaining landfill and transfer station permits has become increasingly
difficult, time consuming and expensive. There can be no assurance, however,
that the Company will succeed in obtaining such permits, or in locating
appropriate solid waste businesses at price levels that the Company considers
appropriate and that reflect historical prices. The Forward Looking Statements
assume the Company will be successful in obtaining permits and that a number of
acquisition candidates and landfill properties sufficient to meet the Company's
goals will be available for purchase and that the Company will be able to
complete the acquisition at prices that the Company has experienced in the past
two years.
Integration. The Company's financial position and results of operations
depend to a large extent on the integration of recently acquired businesses. The
Forward Looking Statements assume that integration of acquired companies,
including the internalization of waste, will require from zero to nine months
from the date the acquisition closes. Failure to achieve effective integration
in the anticipated time period or at all could have an adverse effect on the
Company's future results of operations.
Ongoing Capital Requirements. To the extent that internally generated
cash and cash available under the Company's existing credit facilities are not
sufficient to provide the cash required for future operations, capital
expenditures, acquisitions, debt repayment obligations and/or financial
assurance obligations, the Company will require additional equity and/or debt
financing in order to provide such cash. The Company has incurred significant
debt obligations in the last two years, which entail substantial debt service
costs. The Forward Looking Statements assume that the Company will be able to
raise the capital necessary to finance such requirements at interest rates that
are as good as or better than those it is currently experiencing. There can be
no assurance, however, that such financing will be available or, if available,
will be available on terms satisfactory to the Company.
28
<PAGE> 29
Economic Conditions. The Company's business is affected by general
economic conditions. The Forward Looking Statements assume that the Company will
be able to achieve certain volume and price growth estimates which are not
impacted by an economic downturn or other factors outside of its control. (As
revenue of the Company continues to grow it is likely that the rates of internal
growth will reflect growth rates which are less than those experienced in 1995
and 1996.) There can be no assurance that an economic downturn or other factors
outside of its control will not result in a reduction in the estimated rates of
growth or a decrease in the volume of waste being collected or disposed of by
the Company and/or in the price that the Company charges for its services.
Weather Conditions. Protracted periods of inclement weather may
adversely affect the Company's operations by interfering with collection and
landfill operations, delaying the development of landfill capacity and/or
reducing the volume of waste generated by the Company's customers. In addition,
particularly harsh weather conditions may result in the temporary suspension of
certain of the Company's operations. The Forward Looking Statements do not
assume that such weather conditions will occur which might require the Company
to dispose of waste at alternate facilities and at higher costs.
Dependence on Senior Management. The Company is highly dependent upon
its senior management team. In addition, as the Company continues to grow, its
requirements for operations management with waste industry experience will also
increase. The availability of such experienced management is not known. The
Forward Looking Statements assume that experienced management will be available
when needed by the Company at compensation levels that are within industry
norms. The loss of the services of any member of senior management or the
inability to hire experienced operations management could have a material
adverse effect on the Company.
Influence of Government Regulation. The Company's operations are
subject to and substantially affected by extensive federal, state and local
laws, regulations, orders and permits, which govern environmental protection,
health and safety, zoning and other matters. These regulations may impose
restrictions on operations that could adversely affect the Company's results,
such as, but not limited to, restrictions on the expansion of disposal
facilities, restrictions on or the banning of disposal of out-of-state waste or
certain categories of waste or mandates regarding the disposal of solid waste.
Because of heightened public concern, companies in the waste management business
may become subject to judicial and administrative proceedings involving federal,
state or local agencies. These governmental agencies may seek to impose fines or
to revoke or deny renewal of operating permits or licenses for violations of
environmental laws or regulations or to require remediation of environmental
problems at sites or nearby properties, or resulting from transportation or
predecessors' transpiration and collection operations, all of which could have a
material adverse effect on the Company. Liability may also arise from actions
brought by individuals or community groups in connection with the permitting or
licensing of operations, any alleged violations of such permits and licenses or
other matters. The Forward Looking Statements assume that there will be no
materially negative impact on its operations due to government regulation.
Potential Environmental Liability. The Company may incur liabilities
for the deterioration of the environment as a result of its operations. Any
substantial liability for environmental damage could materially adversely affect
the operating results and financial condition of the Company. Due to the limited
nature of the Company's insurance coverage of environmental liability, if the
Company were to incur a liability for environmental damage, its business
liquidity, financial position or results of operations could be materially
adversely affected. The Forward Looking Statements assume that the Company will
not incur any material environmental liabilities other than those for which a
provision has been recorded in the consolidated financial statements and
disclosed in the notes thereto.
29
<PAGE> 30
INFLATION AND PREVAILING ECONOMIC CONDITIONS
To date, inflation has not had a significant impact on the Company's
operations. Consistent with industry practice, most of the Company's contracts
provide for a pass through of certain costs, including increases in landfill
tipping fees and, in some cases, fuel costs. The Company therefore, believes it
should be able to implement price increases sufficient to offset most cost
increases resulting from inflation. However, competitive factors may require the
Company to absorb cost increases, resulting from inflation. The Company is
unable to determine the future impact of a sustained economic slowdown.
SEASONALITY
The Company believes that its collection and landfill operations can be
adversely affected by protracted periods of inclement weather which could delay
the development of landfill capacity or transfer of waste and/or reduce the
volume of waste generated.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Report of Independent Accountants.
Consolidated Balance Sheets - December 31, 1995 and 1996.
Consolidated Statements of Operations for the Three Years Ended
December 31, 1996.
Consolidated Statements of Stockholders' Equity for the Three Years
Ended December 31, 1996.
Consolidated Statements of Cash Flows for the Three Years Ended
December 31, 1996.
Notes to Consolidated Financial Statements.
30
<PAGE> 31
To Allied Waste Industries, Inc.
We have audited the accompanying consolidated balance sheets of Allied Waste
Industries, Inc., (a Delaware corporation) and subsidiaries as of December 31,
1996 and 1995, and the related consolidated statements of operations,
stockholders' equity and cash flows for the three years then ended. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Allied Waste Industries, Inc.
and subsidiaries as of December 31, 1996 and 1995, and the results of their
operations and their cash flows for the years then ended in conformity with
generally accepted accounting principles.
ARTHUR ANDERSEN LLP
Phoenix, Arizona,
March 26, 1997.
31
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ALLIED WASTE INDUSTRIES, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
December 31
--------------------------
1995 1996
----------- -----------
<S> <C> <C>
ASSETS
Current Assets --
Cash and cash equivalents............................................... $ 4,016 $ 50,094
Accounts receivable, net of allowance of $2,502
and $5,806........................................................... 32,172 88,522
Prepaid and other current assets........................................ 5,369 9,860
Current portion of landfills............................................ 7,103 23,820
Inventories............................................................. 1,960 6,941
Assets held for sale.................................................... -- 524,716
Deferred income taxes................................................... 2,669 5,809
----------- -----------
Total current assets............................................. 53,289 709,762
Property and equipment, net................................................ 302,352 706,752
Goodwill, net.............................................................. 88,429 856,108
Other assets............................................................... 14,636 44,927
----------- -----------
Total assets..................................................... $ 458,706 $ 2,317,549
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities --
Current portion of long-term debt to related parties $ 121 $ 136
Current portion of long-term debt to unrelated parties 37,460 532,811
Accounts payable........................................................ 23,750 56,186
Accrued interest........................................................ 5,995 4,910
Other accrued liabilities............................................... 14,028 77,458
Unearned income......................................................... 9,273 11,185
----------- -----------
Total current liabilities........................................ 90,627 682,686
Long-term debt to related parties, less current portion 1,862 112,473
Long-term debt to unrelated parties, less current portion 176,732 1,034,330
Convertible subordinated debt, net of discount, less current portion 7,779 1,706
Deferred income taxes...................................................... 25,649 53,095
Accrued closure, post-closure and environmental costs 10,530 135,604
Deferred royalties and other long-term obligations......................... 9,222 22,097
Commitments and contingencies
Stockholders' Equity --
Preferred stock, aggregate liquidation preference of
$15,052 and $9,907 .................................................. 2 1
Common stock............................................................ 474 747
Additional paid-in capital.............................................. 134,326 352,589
Retained earnings (deficit)............................................. 1,503 (77,779)
----------- -----------
Total stockholders' equity....................................... 136,305 275,558
----------- -----------
Total liabilities and stockholders' equity....................... $ 458,706 $ 2,317,549
=========== ===========
</TABLE>
The accompanying Notes to Consolidated Financial Statements are an integral part
of these balance sheets.
32
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ALLIED WASTE INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS EXCEPT FOR PER SHARE AMOUNTS AND NUMBER OF SHARES)
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------------------
1994 1995 1996
----------- ----------- -----------
<S> <C> <C> <C>
Revenues............................................. $ 158,354 $ 217,544 $ 246,679
Cost of operations................................... 98,086 120,738 138,437
Selling, general and administrative expenses 32,564 36,708 38,602
Depreciation and amortization........................ 16,931 25,779 31,470
Acquisition related costs............................ -- 1,531 91,693
Unusual items........................................ 2,100 -- 5,744
----------- ----------- -----------
Operating income (loss)............................ 8,673 32,788 (59,267)
Interest income...................................... (1,073) (716) (2,110)
Interest expense..................................... 13,441 11,372 9,257
----------- ----------- -----------
Income (loss) before income taxes.................. (3,695) 22,132 (66,414)
Income tax expense (benefit)......................... (689) 9,751 (399)
----------- ----------- -----------
Income (loss) before extraordinary loss (3,006) 12,381 (66,015)
Extraordinary loss due to early extinguishment
of debt, net of income tax benefit (3,029) -- (13,412)
----------- ----------- -----------
Net income (loss).................................. (6,035) 12,381 (79,427)
Dividends on preferred stock......................... (3,773) (4,070) (1,073)
Conversion fee on equity securities converted -- (2,151) --
----------- ----------- -----------
Net income (loss) to common shareholders $ (9,808) $ 6,160 $ (80,500)
=========== =========== ===========
Net income (loss) per share:
Net income (loss) before extraordinary loss $ (0.27) $ 0.15 $ (1.15)
Extraordinary loss................................. (0.12) -- (0.23)
----------- ----------- -----------
Net income (loss).................................. $ (0.39) $ 0.15 $ (1.38)
=========== =========== ===========
Weighted average common and
common equivalent shares outstanding 25,028,107 40,046,459 58,422,581
=========== =========== ===========
</TABLE>
The accompanying Notes to Consolidated Financial Statements are an integral part
of these statements.
33
<PAGE> 34
ALLIED WASTE INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(IN THOUSANDS)
<TABLE>
<CAPTION>
TOTAL
ADDITIONAL RETAINED STOCK-
PREFERRED COMMON PAID-IN EARNINGS HOLDERS'
STOCK STOCK CAPITAL (DEFICIT) EQUITY
--------- --------- ---------- --------- ---------
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1993 ............... $ 46 $ 218 $ 64,019 $ 5,995 $ 70,278
Common stock issued, net ............... -- 33 8,123 -- 8,156
Stock options exercised ................ -- -- 87 -- 87
7% Cumulative Convertible
preferred stock issued, net .......... 1 -- 3,490 -- 3,491
Series E Cumulative
Convertible preferred
stock issued, net .................... -- -- 15,000 -- 15,000
Series D and $90 Cumulative
Convertible preferred stock
and convertible notes converted ...... (3) 1 5,930 -- 5,928
Dividends declared on
preferred stock ...................... -- -- (3,773) -- (3,773)
Equity transactions
pooled companies ..................... -- -- (141) (3,019) (3,160)
Net loss ............................... -- -- -- (6,035) (6,035)
--------- --------- --------- --------- ---------
Balance December 31, 1994 ................ $ 44 $ 252 $ 92,735 $ (3,059) $ 89,972
Common stock issued, net ............... -- 90 33,006 -- 33,096
Stock options and warrants exercised ... -- 8 2,048 -- 2,056
Series C, Series D, 9%
Cumulative Convertible, and
$90 Cumulative Convertible
preferred stock and
convertible notes converted .......... (42) 124 6,523 -- 6,605
Dividends declared on preferred stock .. -- -- -- (4,070) (4,070)
Conversion fee on equity
securities converted ................. -- -- -- (2,151) (2,151)
Equity transactions of
pooled companies ..................... -- -- 14 (1,598) (1,584)
Net income ............................. -- -- -- 12,381 12,381
--------- --------- --------- --------- ---------
Balance December 31, 1995 ................ 2 474 134,326 1,503 136,305
Common stock issued, net ............... -- 242 162,535 -- 162,777
Warrants issued ........................ -- -- 49,000 -- 49,000
Stock options and warrants exercised ... -- 10 2,336 -- 2,346
9% Cumulative Convertible
preferred stock and
convertible notes converted .......... (1) 21 5,465 -- 5,485
Dividends declared on preferred stock .. -- -- (1,073) -- (1,073)
Equity transactions pooled companies ... -- -- -- 145 145
Net loss ............................... -- -- -- (79,427) (79,427)
--------- --------- --------- --------- ---------
Balance December 31, 1996 ................ $ 1 $ 747 $ 352,589 $ (77,779) $ 275,558
========= ========= ========= ========= =========
</TABLE>
The accompanying Notes to Consolidated Financial Statements are an
integral part of these statements.
34
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ALLIED WASTE INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------------
1994 1995 1996
----------- ----------- -------------
<S> <C> <C> <C>
Operating Activities --
Net income (loss) ............................................... $ (6,035) $ 12,381 $ (79,427)
Adjustments to reconcile net income (loss) to cash provided
by operating activities --
Extraordinary loss on early extinguishment of debt .............. 4,929 -- 22,352
Provisions for:
Depreciation and amortization ................................. 16,931 25,779 31,470
Closure and post-closure costs ................................ 850 711 1,300
Acquisition related costs ..................................... -- 1,531 91,693
Unusual items ................................................. 2,100 -- 5,744
Doubtful accounts ............................................. 1,768 1,994 2,388
Deferred income taxes ......................................... (2,679) 5,683 1,700
Loss on sale of fixed assets .................................. 762 291 1,941
Write-off intangible assets ................................... -- 237 --
Change in operating assets and liabilities, excluding the
effects of purchase acquisitions --
Accounts receivable, prepaid expenses, inventories and other .. (20,029) (9,226) (16,788)
Accounts payable, accrued liabilities, unearned income,
closure and post-closure costs and other .................... 18,305 (2,047) (27,283)
----------- ----------- -----------
Cash provided by operating activities .............................. 16,902 37,334 35,090
----------- ----------- -----------
Investing Activities --
Cost of acquisitions, net of cash acquired ...................... (49,160) (18,715) (1,356,639)
Capital expenditures ............................................ (46,560) (55,633) (43,695)
Proceeds from sale of fixed assets .............................. 1,386 1,057 650
Increase in cash value of life insurance policies ............... (243) (272) --
Change in deferred acquisition costs and notes receivable ....... 2,150 (85) (9)
----------- ----------- -----------
Cash used for investing activities ................................. (92,427) (73,648) (1,399,693)
----------- ----------- -----------
Financing activities --
Net proceeds from sale and redemption of preferred stock ........ 14,926 (316) --
Net proceeds from sale of common stock,
stock options and warrants .................................... 83 30,911 48,119
Proceeds from long-term debt,
net of issuance costs ......................................... 126,260 66,573 1,809,737
Repayments of long-term debt .................................... (59,472) (55,839) (445,767)
Other long-term obligations ..................................... 1,390 (1,040) (365)
Dividends paid .................................................. (3,091) (3,598) (1,188)
Equity transactions of pooled companies ......................... (3,160) (1,584) 145
----------- ----------- -----------
Cash provided by financing activities .............................. 76,936 35,107 1,410,681
----------- ----------- -----------
Increase (decrease) in cash and cash equivalents ................... 1,411 (1,207) 46,078
Cash and cash equivalents, beginning of period ..................... 3,812 5,223 4,016
----------- ----------- -----------
Cash and cash equivalents, end of period ........................... $ 5,223 $ 4,016 $ 50,094
=========== =========== ===========
</TABLE>
The accompanying Notes to Consolidated Financial Statements are an integral part
of these statements.
35
<PAGE> 36
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Allied Waste Industries, Inc. ("Allied" or the "Company") is
incorporated under the laws of the State of Delaware. Allied is a solid waste
management company providing non-hazardous waste collection, transfer, recycling
and disposal services in selected markets.
Principles of consolidation and presentation --
The consolidated financial statements include the accounts of Allied
and its subsidiaries. All significant intercompany accounts and transactions are
eliminated in consolidation. The consolidated financial statements and
accompanying notes have also been restated to reflect acquisitions accounted for
as poolings-of-interests (See Note 2).
Certain reclassifications have been made in prior period financial
statements to conform to the current presentation.
Cash and cash equivalents --
Cash equivalents are investments with original maturities less than
ninety days. Such instruments are stated at quoted market prices.
Concentration of credit risk --
Financial instruments that potentially subject the Company to
concentrations of credit risk consist of cash and cash equivalents and trade
receivables. The Company places its cash and cash equivalents with high quality
financial institutions and limits the amount of credit exposure to any one
financial institution.
The Company provides services to commercial and residential customers
in the United States. Concentrations of credit risk with respect to trade
receivables are limited due to the large number of customers comprising the
Company's customer base. The Company performs ongoing credit evaluations of its
customers, but does not require collateral to support customer receivables. The
Company establishes an allowance for doubtful accounts based on factors
surrounding the credit risk of specific customers, historical trends and other
information.
Inventory --
Inventory is stated at the lower of cost (first-in, first-out method)
or market and consists principally of equipment parts, materials and supplies.
Property and equipment --
Property and equipment are recorded at cost, which includes interest to
finance the acquisition and construction of major capital additions during the
development phase, primarily landfills and transfer stations. Interest
capitalized in the three years ended December 31, 1996 was $3,517,000,
$11,088,000 and $12,970,000, respectively. Depreciation is provided on the
straight-line method over the estimated useful lives of buildings (30-40 years),
vehicles and equipment (3-15 years), containers and compactors (5-10 years) and
furniture and office equipment (3-8 years). The cost of landfill airspace,
including original acquisition cost and incurred and projected landfill
preparation costs, is amortized based on tonnage as landfill airspace is
consumed. Other current assets include the current portion of landfill
amortization costs of $7,103,000 and $23,820,000 at December 31, 1995 and 1996,
respectively. Management periodically reviews the realizability of its
investment in operating landfills. Should events and circumstances indicate that
any of the Company's landfills be reviewed for possible impairment, such
36
<PAGE> 37
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
review for recoverability will be made in accordance with Emerging Issues Task
Force Discussion Issue ("EITF") 95-23. The EITF outlines how cash flows for
environmental exit costs should be determined and measured.
Expenditures for major renewals and betterments are capitalized, while
expenditures for maintenance and repairs which do not improve assets or extend
their useful lives are charged to expense as incurred. For the three years ended
December 31, 1996, maintenance and repair expenses charged to cost of operations
were $12,917,000, $14,741,000 and $14,750,000, respectively. When property is
retired, the related cost and accumulated depreciation are removed from the
accounts and any resulting gain or loss is recognized.
Goodwill --
Goodwill is the cost in excess of fair value of identifiable assets of
acquired businesses and has been amortized on a straight-line basis over 40
years. The Company continually evaluates whether events and circumstances have
occurred subsequent to its acquisition, that indicate the remaining estimated
useful life of goodwill may warrant revision or that the remaining balance of
goodwill may not be recoverable. When factors indicate that goodwill should be
evaluated for possible impairment, the Company uses an estimate of the related
business segment's discounted future cash flows over the remaining life of the
goodwill in measuring whether the goodwill is recoverable. Goodwill amortization
of $2,203,000, $3,679,000 and $2,247,000 is included in depreciation and
amortization for the three years in the period ended December 31, 1996,
respectively. Accumulated goodwill amortization was $9,631,000 and $11,878,000
at December 31, 1995 and 1996, respectively.
Other assets --
Other assets includes notes receivable, landfill closure deposits,
deferred charges and miscellaneous non- current assets. Deferred charges include
costs incurred to acquire businesses and to obtain equity and debt financing.
Upon consummation of an acquisition, deferred costs relating to acquired
businesses accounted for as purchases are allocated to goodwill or landfill
airspace while costs relating to acquired businesses accounted for as
poolings-of-interests are expensed. Direct costs related to acquisitions under
evaluation are capitalized and reviewed for realization on a periodic basis.
These costs are expensed when management determines that the capitalized costs
provide no future benefit. Upon funding of equity and debt offerings, deferred
costs are charged to additional paid-in capital or are capitalized as debt
issuance costs and amortized using the interest method over the life of the
related debt. Miscellaneous assets include consulting and non-competition
agreements which are being amortized in accordance with the terms of the
respective agreements and contracts.
Accrued closure and post-closure costs --
Accrued closure and post-closure costs represent an estimate of the
current value of the future obligation associated with closure and post-closure
monitoring of non-hazardous solid waste landfills currently owned and/or
operated by the Company. Site specific closure and post-closure engineering cost
estimates are prepared annually for landfills owned and/or operated by the
Company for which it is responsible for closure and post-closure. The present
value of estimated future costs are accrued based on accepted tonnage as
landfill airspace is consumed. Discounting of future costs is applied where the
Company believes that both the amounts and timing of related payments are
reliably determinable. The Company periodically updates its estimates of future
closure and post-closure costs. The impact of changes which are determined to be
changes in estimates are accounted for on a prospective basis.
37
<PAGE> 38
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Environmental costs --
Allied accrues for losses associated with environmental remediation
obligations when such losses are probable and reasonably estimable. Accruals for
estimated losses from environmental remediation obligations generally are
recognized no later than completion of the remedial feasibility study. Such
accruals are adjusted as further information develops or circumstances change.
Costs of future expenditures for environmental remediation obligations are not
discounted to their present value. Recoveries of environmental remediation costs
from other parties are recorded as assets when their receipts are deemed
probable.
Deferred royalties and other long-term obligations --
Other long-term obligations include non-competition agreements with
former owners of acquired companies and deferred royalty obligations. Guaranteed
minimum royalty obligations are recorded upon acquisition of the related asset
whereas royalty obligations dependent upon future waste accepted at landfills
are expensed as earned.
Revenue --
Advance billings are recorded as unearned income, and revenue is
recognized as income when services are provided.
Acquisition related costs --
In connection with the Laidlaw Acquisition, the Company incurred
approximately $84.6 million in charges primarily associated with the
acquisition, which include approximately $51.5 million of environmental related
matters, $18.4 million of asset impairments and abandonments, and $14.7 million
of acquisition liabilities, of which $2.0 million relates to litigation matters,
$5.4 million relates to relocation and transition costs and bonuses, $3.8
million relates to taxes, claims and assessments and other integration costs,
and $3.5 million relates to acquired accounts receivable considered
uncollectible.
In connection with the Laidlaw Acquisition, Allied engaged an
independent environmental consulting firm to assist in conducting an
environmental assessment of the real property owned by the acquired subsidiaries
or third-parties, and properties under the management of the acquired companies.
Several contaminated landfills and other properties have been identified, two of
which are owned by subsidiaries of the Company, that would require those
subsidiaries to incur costs for incremental closure and post-closure measures,
remediation activities and litigation costs. The costs of performing the
investigation, design, remediation and the allocation of responsibility to the
subsidiaries of Allied vary significantly between sites. Based on information
available to the Company, Allied recorded a provision of $51.5 million for
environmental matters, including closure and post-closure costs, in the 1996
statement of operations and expects these amounts to be disbursed over the next
30 years.
As a result of the Laidlaw Acquisition, Allied increased its revenue
base by approximately 400% and entered into 14 new markets where it believes
that it can execute its operating strategy. In connection with the significant
increase in size and the redirection of its strategic operating emphasis, Allied
determined that certain asset values have become impaired as they will provide
no further benefit to Company. Included among the asset impairments are costs of
$10.8 million related to over 50 noncompetition agreements in several markets
where the counter party no longer poses a significant threat due to Allied's
increased size, costs of $4.8 million for discontinued facilities and costs of
$2.8 million for market development activities no longer being pursued.
38
<PAGE> 39
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Costs of $7.1 million were incurred in 1996 compared to $1.5 million in
1995 for transaction and integration costs directly related to acquisitions
accounted for using the pooling-of-interests method for business combinations
Unusual items --
In December 1996 the Company recorded $5.7 million in unusual charges
including $2.0 million in connection with the ongoing investigation and
remediation of the Company's Norfolk landfill and $3.7 million of other
non-recurring valuation adjustments.
Extraordinary loss --
On July 31, 1996, the Company completed a tender offer (the "Tender
Offer") and purchased, substantially all of its $100 million 12% Senior
Subordinated Notes due 2004 (the "1994 Notes") at the redemption price of
$1,157.50 per $1,000 note. An extraordinary charge to earnings related to the
Tender Offer of approximately $18.4 million ($11.0 million net of income tax
benefit) was charged to earnings in the third quarter of 1996. The Company also
received a consent from a majority of the holders of the 1994 Notes to eliminate
all substantive financial covenants associated with the remaining 1994 Notes.
In addition, in December of 1996, the Company refinanced its $300
million senior revolving credit facility with the proceeds from the Senior
Credit Facility related to the Laidlaw Acquisition and recognized an
extraordinary charge of approximately $4.0 million ($2.4 million net of income
tax benefit).
In connection with the Securities Purchase Agreement between the
Company and TPG dated October 27, 1994, as amended, the Company solicited and
obtained consents from a majority of the holders of its 10.75% 1994 Notes
causing modifications to the indenture agreement and the execution of a
supplemental indenture (the "Supplemental Indenture"). Among other things the
Supplemental Indenture increased the Company's restricted borrowing capacity
(with certain limitations) under current and future revolving credit agreements
and lease lines from a total of $35 million to $120 million, deleted certain
borrowing restrictions, changed certain financial ratio covenants and increased
the per annum rate of interest from 10.75% to 12.0%. The execution of the
Supplemental Indenture, which was effective January 30, 1995, was accounted for
as an early extinguishment of debt. Accordingly, capitalized deferred debt
issuance costs related to the original indenture were written off as of December
31, 1994 and an extraordinary charge of $4,595,000, ($2,823,000 net of income
tax benefit), was recorded. Additionally, in the first quarter of 1994, an
extraordinary charge of $334,000, ($206,000 net of income tax benefit) was
recognized as a result of the early extinguishment of various debt instruments
using the proceeds from the $100 million 1994 Notes.
Use of estimates --
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities,
disclosures of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting periods. Final settlement amounts could differ from those estimates.
39
<PAGE> 40
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Fair value of financial instruments --
The following disclosure of the estimated fair value of financial
instruments is made in accordance with the requirements of Statement of
Financial Accounting Standards ("SFAS") No. 107, "Disclosures About Fair Value
of Financial Instruments". The Company's Financial Instruments as defined by
SFAS No. 107 include cash, money market funds, accounts receivable, accounts
payable, long-term debt and convertible subordinated debt. The estimated fair
value amounts have been determined by the Company at December 31, 1996 using
available market information and valuation methodologies described below.
Considerable judgment is required in interpreting market data to develop the
estimates of fair value. Accordingly, the estimates may not be indicative of the
amounts that could be realized in a current market exchange. The use of
different market assumptions or valuation methodologies could have a material
effect on the estimated fair value amounts.
The carrying value of cash, money market funds, accounts receivable and
accounts payable approximate fair values due to the short-term maturities of
these instruments.
The Company's 1996 Notes (see Note 5) had a fair value of $548.6
million at December 31, 1996 based upon quoted market prices. The convertible
subordinated debt has a fair value of approximately $2.4 million based upon the
conversion features of the related instruments and market price of the Company's
common stock at December 31, 1996. The fair value of the Zero Coupon Debenture
and 7% Debenture (see Note 5) approximates book value at December 31, 1996 due
to the short passage of time since their origination. Management believes the
carrying value of all remaining long-term debt approximates fair value.
Stock-based compensation plans --
The Company accounts for its stock-based compensation plans under
Accounting Principles Board Opinion No. 25, ("APB No. 25"). Effective in January
1, 1996, the Company adopted the disclosure option of SFAS No. 123, "Accounting
for Stock-based Compensation." SFAS No. 123 requires that companies which do not
elect to account for stock-based compensation as prescribed by the statement,
shall disclose the pro forma effects on earnings and earnings per share as if
SFAS No. 123 had been adopted. Additionally, certain other disclosures with
respect to stock compensation and the related assumptions are used to determine
the pro forma effects of SFAS No. 123.
Accounting pronouncements not yet required to be adopted --
In March 1997 the Financial Accounting Standards Board (FASB) issued
FASB Statement No. 128 "Earnings Per Share". The new statement is effective for
fiscal years ending after December 15, 1997 and will require restatement of
prior years' earnings per share. The Company has not quantified the effect of
applying the new statement.
40
<PAGE> 41
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Statements of cash flows --
The supplemental cash flow disclosures and non-cash transactions for
the three years ended December 31, 1996 are as follows (in thousands):
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------
1994 1995 1996
-------- -------- --------
<S> <C> <C> <C>
Supplemental Disclosures --
Interest paid ........................................... $ 12,229 $ 20,922 $ 26,667
Income taxes paid ....................................... 980 2,942 6,271
Non-Cash Transactions --
Common stock, preferred stock or warrants
issued in acquisitions or contributed to 401(k) plan .. $ 11,426 $ 754 $164,764
Capital leases and debt obligations for
the purchase of property and equipment ................ 13,311 21,659 19,094
Debt and liabilities incurred or assumed
in acquisitions ....................................... 23,344 14,434 213,082
Debt converted to common stock or
preferred stock ....................................... 5,928 6,802 5,485
Capitalized interest .................................... 3,517 11,088 12,970
Dividends and interest paid, and
conversion fee on debt and equity securities
converted paid in common stock ........................ -- 3,490 --
</TABLE>
2. BUSINESS COMBINATIONS
Acquisitions accounted for as purchases are reflected in the results of
operations since the date of purchase in Allied's consolidated financial
statements. The results of operations for acquisitions accounted for as
poolings-of-interests are included in Allied's consolidated financial statements
for all periods presented. Often the final determination of the cost, and the
allocation thereof, of certain of the Company's acquisitions is subject to
resolution of certain contingencies. Once such contingencies are achieved, the
purchase price is adjusted. Shares issued in connection with business
acquisitions have been valued taking into consideration certain restrictions
placed on the stock.
On December 30, 1996, the Company completed the acquisition of
substantially all of the non-hazardous solid waste management business conducted
by Laidlaw in the United States and Canada, for total consideration of
approximately $1.5 billion comprised of $1.2 billion cash, 14.6 million shares
of Common Stock, a warrant to acquire 20.4 million shares of Common Stock
(valued based on an appraisal by an independent investment banking firm), and a
zero percent and a 7% junior subordinated debenture. The cash consideration was
financed from the proceeds of the Senior Credit Facility and the sale of the
1996 Notes (see Note 5).
On March 16, 1997, pursuant to a share purchase agreement with USA
Waste Services, Inc. ("USA Waste"), the Company sold to USA Waste (the "Canadian
Sale") all of the Canadian nonhazardous solid waste management operations of the
Company acquired from Laidlaw for approximately $518 million. The Company used
the proceeds from the Canadian Sale to pay down approximately $517 million in
debt under the Senior Credit Facility.
41
<PAGE> 42
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The following table reflects the allocation of purchase price for the
Laidlaw Acquisition, giving effect to the Canadian Sale, (in thousands):
<TABLE>
<S> <C>
Current assets....................... $ 70,137
Property and equipment............... 353,793
Goodwill............................. 757,200
Non-current assets................... 2,550
Current liabilities.................. (88,759)
Long-term debt....................... (4,019)
Other long-term obligations (106,648)
-----------
Total net assets $ 984,254
===========
</TABLE>
The following table summarizes acquisitions for the three years ended
December 31, 1996, excluding the Laidlaw Acquisition:
<TABLE>
<CAPTION>
1994 1995 1996
--------- --------- ---------
<S> <C> <C> <C>
Number of businesses acquired accounted for as:
Poolings-of-interests ..................... -- 5 5
Purchases ................................. 21 13 16
Total consideration (in millions) ................ $ 99.5(1) $ 45.3(2) $ 126.5
Shares of stock issued:
Common stock .............................. 2,897,858 4,000,040(3) 8,924,374(4)
Preferred stock ........................... 9,982 -- --
</TABLE>
- ------------
(1) Includes $11.7 million paid for two landfills under development.
(2) Includes $9.9 million paid for the acquisition of an operating
landfill.
(3) Includes 23,244 shares of contingently issuable common stock.
(4) Includes 774,794 shares of contingently issuable common stock.
Revenues and net income have been restated for acquisitions accounted
for as poolings-of-interests as presented in the following table (in thousands):
<TABLE>
<CAPTION>
Allied
Before
Pooling 1996 Allied, as
Acquisitions Poolings Restated
------------ --------- ----------
<S> <C> <C> <C>
Year ended December 31, 1996
Revenues .................... $ 221,265 $ 25,414 $ 246,679
Net loss .................... (77,132) (2,295) (79,427)
Year ended December 31, 1995
Revenues .................... 169,865 47,679 217,544
Net income .................. 11,584 797 12,381
Year ended December 31, 1994
Revenues .................... 114,814 43,540 158,354
Net loss .................... (6,731) 696 (6,035)
</TABLE>
42
<PAGE> 43
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Unaudited pro forma statement of operations data --
The following table compares, for the year ended December 31, 1996,
reported consolidated results of operations to unaudited pro forma consolidated
data as if all of the companies acquired in 1996 (including the Laidlaw
Acquisition, giving effect to the Canadian Sale) and accounted for using the
purchase method for business combinations were acquired as of January 1, 1996
(in thousands, except per share data):
<TABLE>
<CAPTION>
1996 1996
Reported Pro Forma
---------- ----------
<S> <C> <C>
Revenues ......................... $ 246,679 $ 750,396
Operating loss ................... (59,267) (4,079)
Net loss ......................... (79,427) (105,760)
Net loss to common shareholders .. (80,500) (106,833)
Net loss per common share ........ (1.38) (1.46)
</TABLE>
- -----
This data does not purport to be indicative of the results of
operations of Allied that might have occurred nor which might occur in the
future.
3. ASSETS HELD FOR SALE
In March 1997, the Company completed the Canadian Sale for
approximately $518 million in cash. No gain or loss was recorded on this sale.
In addition, the Company has entered into a definitive agreement to sell certain
non-core medical waste assets for approximately $6.7 million. No gain or loss is
expected to be recorded in connection with this sale.
At December 31, 1996, the net assets held for sale are classified as
current assets in the consolidated balance sheet and are summarized as follows
(in thousands):
<TABLE>
<S> <C>
Cash ......................... $ 628
Accounts receivable, net ..... 43,104
Other current assets ......... 6,402
Property and equipment, net .. 165,622
Goodwill ..................... 349,192
Other long-term assets ....... 13,099
Current liabilities .......... (31,338)
Long-term liabilities ........ (21,993)
---------
Total net assets ............. $ 524,716
=========
</TABLE>
43
<PAGE> 44
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
4. PROPERTY AND EQUIPMENT
Property and equipment at December 31, 1995 and 1996 was as follows (in
thousands):
<TABLE>
<CAPTION>
1995 1996
--------- ---------
<S> <C> <C>
Land and improvements ........................... $ 16,449 $ 39,858
Land held for permitting as landfills(1) ........ 5,640 66,070
Landfills ....................................... 179,463 296,943
Buildings and improvements ...................... 24,525 59,359
Vehicles and equipment .......................... 88,410 266,494
Containers and compactors ....................... 46,412 59,931
Furniture and office equipment .................. 5,735 7,312
--------- ---------
366,634 795,967
Accumulated depreciation and amortization ....... (64,282) (89,215)
--------- ---------
$ 302,352 $ 706,752
========= =========
</TABLE>
- ------
(1) These properties have been approved for use as landfills, and the
Company is currently in the process of obtaining the necessary permits.
5. LONG-TERM DEBT
Long-term debt at December 31, 1995 and 1996 consists of the following
(in thousands):
To related parties --
<TABLE>
<CAPTION>
1995 1996
--------- -------
<S> <C> <C>
Unsecured notes payable to stockholders, net of
discount, interest at an effective rate of 14% .......... $ -- $110,747
Unsecured notes payable to stockholders, interest at 12% .. 1,983 1,862
-------- --------
1,983 112,609
Current portion ........................................... 121 136
-------- --------
$ 1,862 $112,473
======== ========
</TABLE>
In connection with the Laidlaw Acquisition, a subsidiary of the
Company issued a $150 million 7% Junior Subordinated Debenture (the "7%
Debenture") and a $168.3 million Zero Coupon Debenture (the "Zero Coupon
Debenture" and together with the 7% Debenture, the "Allied Debentures"). The 7%
Debenture bears interest at a fixed rate of 7% per annum payable semi-annually,
except for the first three years during which the interest payments are
deferred. The 7% Debenture and the Zero Coupon Debenture have an effective
interest rate of 14% and have been recorded at a net discounted amount of $77.5
million and $33.2 million, respectively, at December 31, 1996. The Allied
Debentures are due December 2008. Upon a change in control, the Company is
obligated to offer to prepay the Allied Debentures at a predetermined discount
to the face amount of each debenture. The Allied Debentures are guaranteed by
the Company and do not contain any restrictive or financial covenants.
44
<PAGE> 45
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The $2.0 million notes payable to related parties were issued in April
1995 in accordance with an agreement to acquire certain real estate. This
agreement was executed by one of the Company's subsidiaries prior to the
Company's acquisition of the subsidiary. The agreement required the payment of
an aggregate of $5.6 million to the previous owners upon issuance of a permit to
operate a landfill. Subsequent to execution of this agreement, the previous
owners became stockholders of the Company. These notes bear interest at 12% per
annum with monthly principal and interest payments through maturity in May 1999
and are guaranteed by the Company.
To unrelated parties --
<TABLE>
<CAPTION>
1995 1996
---------- ----------
<S> <C> <C>
Senior credit facilities, weighted average interest
at 9.25% and 10.03% at December 31, 1995
and 1996, respectively ........................................................ $ 37,401 $ 975,000
Senior subordinated notes,
interest at 12% and 10.25%-12%
at December 31, 1995 and 1996, respectively, unsecured ........................ 100,000 525,010
Notes payable to banks, finance companies and individuals, weighted average
interest rate of 8.0% and 10.35% at December 31, 1995 and 1996, respectively
and principal payable through 2014, secured by vehicles, equipment, real
estate, accounts receivable
or stock of certain subsidiaries .............................................. 33,083 9,475
Notes payable to individuals and a commercial company,
interest at 5%-12%, principal and interest payable through
2006, unsecured ............................................................... 11,039 12,383
Obligations under capital leases of vehicles and
equipment, weighted average interest at
9.9% and 9.6% at December 31, 1995,
and 1996, respectively, payable monthly ....................................... 32,656 45,217
---------- ----------
214,179 1,567,085
Current portion ............................................................... 37,447 532,755
---------- ----------
$ 176,732 $1,034,330
========== ==========
</TABLE>
In connection with the Laidlaw Acquisition, the Company and Allied
Waste North America, Inc., a wholly owned subsidiary of the Company ("Allied
NA") executed a $1.275 billion Credit Agreement (the "Senior Credit Facility").
The Senior Credit Facility was comprised of (i) a $300 million revolving credit
facility; (ii) a $475 million 5.5 year senior term loan; (iii) a $100 million
6.5 year Amortization Extended Term Loan AXEL(TM)A; (iv) a $200 million 7.5 year
AXEL(TM)B; and (v) a $200 million 8.5 year AXEL(TM)C. Of the $300 million
available under the revolving credit facility, no more than $200 million may be
outstanding at one time, of which no more than $100 million may be used to
finance permitted acquisitions ("Acquisition Loans"), as defined in the Credit
Agreement, and no more than $150 million may be used for the issuance of standby
letters-of-credit. Amounts outstanding under the Senior Credit Facility are
payable quarterly, beginning in June 1997, with final maturities in June 2005.
The Senior Credit Facility is secured by a pledge of the stock of substantially
all of Allied NA's assets and is guaranteed by the Company and all the
subsidiaries of Allied NA. As of December 31, 1996, Allied NA had no funded
loans outstanding and had issued approximately $46 million of standby
letters-of-credit, leaving $200 million available for funded loans and $104
million available for letters-of-credit. In connection with the Canadian Sale,
Allied paid approximately $517 million of the Senior Credit Facility. Payments
were made on a pro rata basis between the term loan and each of the AXEL
traunches as provided by the Senior Credit Facility.
45
<PAGE> 46
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
In connection with the Laidlaw Acquisition, Allied NA issued $525
million of 10.25% Senior Subordinated Notes due 2006 (the "1996 Notes") in a
Rule 144A offering. Net proceeds from the sale of the 1996 Notes, after the
underwriting discount and other expenses, were approximately $509 million. The
net proceeds were used to pay a portion of the cash purchase price of the
Laidlaw Acquisition, repay amounts outstanding under the Company's previous $300
million credit facility, fund certain acquisitions and for general corporate
purposes. The 1996 Notes cannot be redeemed until December 1, 2001, except under
certain circumstances. Prior to December 1, 2001, the 1996 Notes are subject to
redemption, at the option of Allied NA, at prices specified in the indenture. At
any time prior to December 1, 1999, up to 33% of principal amount of the 1996
Notes will be redeemable, at the option of Allied NA, from the proceeds of one
or more public offerings of capital stock by the Company at a redemption price
of 110.25% of principal amount, plus accrued interest. The 1996 Notes are
guaranteed by the Company and substantially all of Allied NA's subsidiaries, the
guarantees of which are expressly subordinated to the guarantees of Allied NA's
Senior Credit Facility.
Convertible subordinated debt --
<TABLE>
<CAPTION>
1995 1996
------ ------
<S> <C> <C>
Senior Convertible Subordinated Debentures, unsecured .. $5,000 $ 975
Convertible subordinated notes,unsecured ............... 1,992 --
Convertible note payable to an individual, unsecured ... 800 787
------ ------
7,792 1,762
Current portion ..................................... 13 56
------ ------
$7,779 $1,706
====== ======
</TABLE>
During the fourth quarter of 1995, the $5.0 million Convertible
Subordinated Debentures were converted into 1,483,000 shares of Allied common
shares.
The $5.0 million Senior Convertible Subordinated Debentures bear
interest at 8.5% per annum payable semi-annually, with principal payable in
2002. The debentures are convertible into Allied common shares at $6.00 per
share. Warrants to purchase 195,000 common shares at $6.00 per share were issued
in connection with the sale of the debentures.
In 1996, the remainder of the 6% Convertible Subordinated Notes were
converted into 362,040 shares of Allied common stock.
The 8% Convertible note payable to an individual is payable quarterly
through September 1996. Beginning October 1996, principal and interest is
payable in equal monthly installments through October 2006. The note is
convertible into Allied common stock at $10.00 per share during the period of
January 1997 to December 1998.
Debt covenants --
The Company's Senior Credit Facility, the indenture relating to the
1996 Notes and certain subordinated convertible debt, contain warranties and
covenants, requiring the maintenance of certain tangible net worth, debt to
equity, and cash flow to debt ratios. Additionally, these covenants limit among
other things, the ability of the Company to incur additional secured
indebtedness, make acquisitions and purchase fixed assets above certain amounts,
transfer or sell assets, pay dividends except on certain preferred stock, make
optional payments on certain subordinated indebtedness including the 1996 Notes
or make certain other restricted payments, create liens, enter into certain
transactions with affiliates or consummate a merger, consolidation or sale of
all or substantially all of its assets. At December 31, 1996, Allied was in
compliance with all applicable covenants.
46
<PAGE> 47
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Substantially all subsidiaries of the Company are jointly and severally
liable for the obligations under the 1996 Notes and the Senior Credit Facility
through unconditional guarantees issued by the subsidiaries which are all,
except in one minor case, wholly-owned by the Company. No significant
restrictions exist regarding the ability of the subsidiary companies to pay
dividends or make loans or advances to Allied.
Future maturities of long-term debt --
Aggregate future maturities of long-term debt (including a $517 million
repayment on the Senior Credit Facility from the proceeds of the Canadian Sale)
outstanding at December 31, 1996 (in thousands):
<TABLE>
<CAPTION>
Maturity 1996
---------- ----------
<S> <C>
1997 $ 532,947
1998 14,778
1999 12,830
2000 7,202
2001 7,777
Thereafter 1,105,922
----------
$1,681,456
==========
</TABLE>
Future payments under capital leases, the principal amounts of which
are included above in future maturities of long-term debt, are as follows at
December 31, 1996 (in thousands):
<TABLE>
<CAPTION>
1996
-------------------------------
Maturity Principal Interest Total
---------- --------- -------- -------
<S> <C> <C> <C>
1997 $10,950 $ 3,804 $14,754
1998 9,737 2,806 12,543
1999 8,175 1,928 10,103
2000 6,260 1,230 7,490
2001 7,246 700 7,946
Thereafter 2,849 563 3,412
------- ------- -------
$45,217 $11,031 $56,248
======= ======= =======
</TABLE>
6. CLOSURE, POST-CLOSURE AND ENVIRONMENTAL COSTS
The net present value of the closure and post-closure commitment is
calculated assuming inflation of 3.5% and a risk-free capital rate of 7.0%.
Discounted amounts previously recorded are accreted to reflect the effects of
the passage of time. The Company's current estimate of total future payments for
closure and post-closure is $467 million, as shown below, while the present
value of such estimate is $181 million. At December 31, 1995 and 1996,
respectively, accruals for landfill closure, post-closure and environmental
costs (including costs assumed through acquisitions) were approximately $10.5
million and $152.5 million. The accruals reflect relatively young landfills
whose estimated remaining lives, based on current waste flows, range from 1 to
over 75 years, with an estimated average remaining life of greater than 30
years.
47
<PAGE> 48
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The Company's estimate of total future payments for closure and
post-closure liabilities for currently owned and operated landfills is as
follows (in thousands):
<TABLE>
<S> <C>
1997 $ 18,122
1998 16,581
1999 5,741
2000 8,331
2001 6,331
Thereafter 412,211
--------
$467,317
========
</TABLE>
During 1994, the Company's landfills became subject to the closure and
post-closure requirements of Subtitle D. Previously, the Company's landfills
were subject to local requirements. The principal changes under Subtitle D are
an extension of the post-closure monitoring period to 30 years, more rigorous
groundwater monitoring, and a requirement to use clay or synthetic liners as
capping materials. The Company updated its estimates of future closure and
post-closure costs in accordance with its interpretations of Subtitle D.
In connection with the Laidlaw Acquisition, Allied engaged an
independent environmental consulting firm to assist in conducting an
environmental assessment of the real property owned by the acquired subsidiaries
or third-parties, and properties under the management of the acquired companies.
Several contaminated landfills and other properties have been identified, two of
which are owned by subsidiaries of the Company, that would require those
subsidiaries to incur costs for incremental closure and post-closure measures,
remediation activities and litigation costs. The costs of performing the
investigation, design, remediation and the allocation of responsibility to the
subsidiaries of Allied vary significantly between sites. Based on information
available to the Company, Allied recorded a provision of $51.5 million for
environmental matters, including closure and post-closure costs, in the 1996
statement of operations and expects these amounts to be disbursed over the next
30 years.
Prior to the Company's acquisition of CRX, an investigation of an
unrelated manufacturing facility led to allegations that hazardous wastes were
transported to and disposed of in CRX's Norfolk, Nebraska landfill. A provision
of $2.1 million, in excess of the closure and post-closure reserves recorded in
the normal course of business, was made in the Company's 1994 consolidated
financial statements to recognize the estimated costs of additional closure,
post-closure and remedial measures. Since 1994 the Company has engaged an
independent environmental consultant to assist it in conducting the groundwater
contamination investigation program. Based on a report from the Company's
independent environmental consultant an additional provision of $2.0 million has
been recorded in the 1996 statements of operations. The groundwater
investigation is ongoing and remediation efforts have commenced.
The ultimate amounts for environmental liabilities cannot be determined
and estimates of such liabilities made by the Company, after consultation with
its independent environmental engineers, require assumptions about future events
due to a number of uncertainties including the extent of the contamination, the
appropriate remedy, the financial viability of other potentially responsible
parties and the final apportionment of responsibility among the potentially
responsible parties. Where the Company has concluded that its estimated share of
potential liabilities is probable, a provision has been made in the consolidated
financial statements. Since the ultimate outcome of these matters may differ
from the estimates used in the Company's assessment to date, the recorded
liabilities will be periodically evaluated as additional information becomes
available to ascertain that the accrued liabilities are adequate. The Company
has determined that the recorded liability for environmental matters as of
December 31, 1996 of approximately $152.5 million represents the most probable
outcome of these contingent matters. The Company does not expect that
adjustments to estimates, which are reasonably possible in the near term and
that may result in changes to recorded amounts, will have a material effect on
the Company's consolidated liquidity, financial positions or results of
operations.
48
<PAGE> 49
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
7. STOCKHOLDERS' EQUITY
The authorized, issued and outstanding shares of the Company's classes
of capital stock were as follows:
<TABLE>
<CAPTION>
Issued and Outstanding
Liquidation at December 31,
Preference Authorized --------------------------
per Share Shares 1995 1996
----------- ----------- ---------- ----------
<S> <C> <C> <C> <C>
Preferred stock, $.10 par --
Series C Convertible ......... $ 10 800,000 -- --
Series D Convertible ......... 15 267,000 4,000 --
9% Cumulative Convertible .... 1,000 30,000 5,029 --
$90 Cumulative Convertible ... 1,000 20,000 -- --
7% Cumulative Convertible .... 1,000 100,000 9,963 9,907
Common stock, $.01 par, net of
570,048 treasury shares ...... -- 200,000,000 48,031,528 75,478,867
</TABLE>
Dividends declared and accrued on the Company's classes of preferred
stock were as follows:
<TABLE>
<CAPTION>
Dividends Declared Accrued Dividends at
For The Years Ended December 31, December 31,
-------------------------------- -------------------
1994 1995 1996 1995 1996
------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
Series D Convertible ................ $ 202 $ 184 $ 1 $ 41 $ --
9% Cumulative Convertible ........... 2,464 2,466 377 75 --
$90 Cumulative Convertible .......... 526 560 -- -- --
7% Cumulative Convertible ........... 472 698 695 145 144
Series E Cumulative Convertible ..... 109 162 -- -- --
------ ------ ------ ------ ------
$3,773 $4,070 $1,073 $ 261 $ 144
====== ====== ====== ====== ======
</TABLE>
On January 30, 1995, all Series E preferred was converted into common
stock. In December 1995, all of the Series C preferred stock and $90 preferred
stock was converted into common stock. During 1996, all of the Series D
preferred stock and 9% preferred stock was converted into Common Stock.
7% cumulative convertible preferred stock --
In April 1994, Allied issued 9,982 shares of 7% cumulative convertible
stock ("7% preferred") in connection with the acquisition of Southern States
Environmental Services. The stock has no voting rights and is redeemable at the
option of the Company under certain conditions. The stock is convertible into
common stock at a rate equal to $7.00 per common share subject to anti-dilution
provisions. Dividends are $70.00 per share per annum, cumulative and payable
quarterly in common stock through April 15, 1995 and in cash thereafter.
49
<PAGE> 50
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Warrants to purchase common stock --
Warrants to purchase common shares at December 31, 1995 and 1996 are
summarized as follows:
<TABLE>
<CAPTION>
1995 1996
--------------- ----------------
<S> <C> <C>
Number of shares..................................... 3,488,010 22,645,166
Purchase price per share............................. $3.00 -- $13.50 $3.37 -- $13.50
Expiration dates..................................... 1996 -- 2005 1997 -- 2008
</TABLE>
In connection with the Laidlaw Acquisition, the Company issued a warrant to
Laidlaw for the purchase of 20,400,000 shares of Common Stock at an exercise
price of $8.25 per share. Both the number of shares purchasable upon exercise of
the warrant and the exercise price are subject to adjustment under certain
circumstances described in the warrant. Among other restrictions, Laidlaw and
its affiliates are precluded from exercising the warrant unless there is a
change of control of Allied. Laidlaw may sell the warrant to third-parties,
provided that any such third-party and its affiliates do not beneficially own
more than 9% of the Company's then outstanding Common Stock. The warrant expires
December 2008.
8. STOCK OPTION PLANS
The 1991 Incentive Stock Plan ("1991 Plan"), the 1993 Incentive Stock
Plan ("1993 Plan") and the 1994 Incentive Stock Plan ("1994 Plan") provide for
the grant of non-qualified stock options, incentive stock options, shares of
restricted stock, shares of phantom stock and stock bonuses. The maximum number
of shares which may be granted under the 1991 Plan may not exceed the greater of
750,000 common shares or 7.5% of the number of common shares outstanding at the
end of a preceding fiscal quarter (4,463,778 shares at December 31, 1996). An
additional 500,000 and 1,000,000 common shares may be granted under the 1993
Plan and the 1994 Plan, respectively. The exercise price, term and other
conditions applicable to each option granted are generally determined by the
Compensation Committee of the Board of Directors.
The 1994 Amended and Restated Non-Employee Director Stock Option Plan
provides for the grant of non-qualified options to each member of the Board of
Directors, who is not also an employee of the Company, at a price equal to the
fair market value of a common share on the date of grant. The maximum number of
shares which may be granted under the plan is 750,000 common shares. All options
granted under the plan are fully vested and exercisable on the date of grant and
expire ten years from the grant date.
The Company accounts for its stock-based compensation plans under APB
No. 25, under which no compensation expense has been recognized, as all options
have been granted with an exercise price equal to the fair value of the
Company's common stock upon the date of grant. In 1996, the Company adopted SFAS
No. 123 for disclosure purposes and accordingly, the fair value of each option
grant has been estimated as of the date of grant using the Black-Scholes option
pricing model with the following weighted average assumptions: risk-free
interest rate of 5.18% to 7.64%, expected life of 5-8 years, dividend rate of
zero percent, and expected volatility of 49.09% to 52.04%. Using these
assumptions, the impact on the Company's net income (loss) and net income (loss)
per share would not have been material.
50
<PAGE> 51
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
A summary of the status of the Company's stock option plans at December
31, 1995 and 1996 and for the years then ended is presented in the table and
narrative below:
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------
1995 1996
--------- ----------
<S> <C> <C>
Options outstanding, beginning of period ........ 1,575,739 2,849,568
Options granted .............................. 1,493,469 1,747,550
Options exercised ............................ (183,606) (277,016)
Options terminated ........................... (36,034) (11,408)
---------- ----------
Options outstanding, end of period .............. 2,849,568 4,308,694
========== ==========
Options exercisable, end of period .............. 1,774,456 2,170,086
Weighted average fair value of options granted .. $ 4.66 $ 8.64
</TABLE>
Of the 4,308,694 employee and director options outstanding at December
31, 1996, (i) 1,473,382 options have exercise prices between $3.00 and $11.50,
with a weighted average exercise price of $5.30 and a weighted average remaining
contractual life of 5.5 years, of which all are exercisable, (ii) 932,552
options have exercise prices between $4.27 and $4.88, with a weighted average
exercise price of $4.44 and a weighted average remaining contractual life of 8.1
years, of which 613,456 are exercisable (iii) 249,743 options have exercise
prices between $4.50 and $9.50, with a weighted average exercise price of $8.81
and a weighted average remaining contractual life of 9.3 years, of which, 83,248
are exercisable (iv) 1,653,017 options have exercise prices between $4.27 and
$9.50 and a weighted average remaining contractual life of 8.9 years, of which
none are exercisable.
9. NET INCOME (LOSS) PER COMMON SHARE
Net income (loss) per common share is calculated by dividing net income
(loss), less dividend requirements on preferred stock, by the weighted average
number of common shares and common share equivalents outstanding during each
period as restated to reflect acquisitions accounted for as
poolings-of-interests. The computation of weighted average common and common
equivalent shares used in the calculation of net income (loss) per common share
is as follows:
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------------
1994 1995 1996
-------------- ------------- -----------
<S> <C> <C> <C>
Common shares outstanding .................................. 25,805,179 48,031,528 75,478,867
Effect of using weighted average common
shares outstanding during the period .................... (876,091) (10,428,172) (17,097,236)
Effect of stock options and warrants, assumed exercisable .. -- 1,989,556 --
Effect of Series C preferred stock, assumed converted ...... -- 233,533 --
Effect of shares assumed issued
pursuant to earn-out .................................... 99,019 220,014 40,950
----------- ----------- -----------
25,028,107 40,046,459 58,422,581
=========== =========== ===========
</TABLE>
Conversion has not been assumed for Series D preferred stock, 9%
preferred stock, 7% preferred stock and convertible subordinated notes in 1994,
1995 or 1996, as the effect would not be dilutive. Additionally, conversion has
not been assumed for stock options and warrants in 1994 and 1996, nor has
conversion been assumed for Series C preferred stock, $90 preferred stock and
Series E preferred stock in 1994, as the effects would not be dilutive. Fully
diluted earnings per common share have not been presented as the effect would
not be dilutive.
51
<PAGE> 52
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
10. INCOME TAXES
The Company accounts for income taxes using a balance sheet approach
whereby deferred tax assets and liabilities are determined based on the
differences in financial reporting and income tax basis of assets, other than
goodwill, and liabilities, and the differences are measured using the income tax
rate in effect in the year of measurement.
The Company and its subsidiaries file a consolidated federal income tax
return. As of December 31, 1996, Allied had a net operating loss carryforward
("NOLC") for federal income tax purposes and state income tax purposes of
approximately $15.2 and $7.0 million, respectively. The NOLCs, which expire
beginning in 2004, are available to offset future taxable income subject to
potential limitations. Included in the NOLCs are losses of acquired companies
which the Company believes are realizable after application of change of
ownership and separate return loss year limitation rules. The Company has placed
a valuation reserve on "other" NOLCs to reflect limitations from separate
Company filing rules. These "other" NOLCs are not included in the amounts above.
The components of the income tax provision (benefit) consist of the following
(in thousands):
<TABLE>
<CAPTION>
Year Ended December 31,
--------------------------------
1994 1995 1996
------- ------- -------
<S> <C> <C> <C>
Current tax provision ......... $ 1,011 $ 4,724 $ 947
Deferred provision (benefit) .. (1,700) 5,027 (1,346)
------- ------- -------
Total ......................... $ (689) $ 9,751 $ (399)
======= ======= -------
</TABLE>
Reconciliation of the federal statutory tax rate to the Company's effective rate
is as follows:
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------
1994 1995 1996
----- ---- ----
<S> <C> <C> <C>
Federal statutory tax rate ......................... (34.0)% 35.0% (35.0)%
Consolidated state taxes, net of federal benefit ... 4.5 5.0 (5.0)
Taxes of pooled companies .......................... (4.2) (2.1) 0.7
Amortization of goodwill ........................... 9.3 3.8 2.3
Potential tax goodwill greater than book goodwill .. -- -- 34.7
Other permanent differences ........................ 5.8 2.4 1.7
----- ---- ----
Effective tax rate ................................. (18.6)% 44.1% (0.6)%
===== ==== ====
</TABLE>
Tax benefits on the extraordinary items in 1994 and 1996 were based on the
Company's then ordinary combined federal and state rate of 38.5% and 40%,
respectively.
The net current deferred tax asset of $2.7 million and $5.8 million, as
of December 31, 1995 and 1996, respectively, consists of the current benefit
expected to be obtained from the utilization of the Company's NOLCs and its
alternative minimum tax credits. These amounts include a valuation allowance of
$1.2 million and $1.3 million, as of December 31, 1995 and 1996, respectively,
to reflect possible limitations on the ability to use NOLCs for separate company
federal and state filing purposes.
52
<PAGE> 53
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The components of the net long-term deferred tax liability are as follows (in
thousands):
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------
1995 1996
------- -------
<S> <C> <C>
Deferred tax liability relating to property primarily
consisting of landfill assets and debt basis differences .. $28,606 $78,700
------- -------
Deferred tax assets relating to:
Closure and post-closure reserves ......................... 99 1,883
Other reserves and estimated expenses ..................... 2,858 23,722
------- -------
Deferred tax assets, net .................................. 2,957 25,605
------- -------
Net long-term deferred tax liability ........................ $25,649 $53,095
======= =======
</TABLE>
The increase in the long-term deferred tax liability includes deferred
taxes related to 1996 acquisitions where the financial basis of assets acquired
exceeded the tax basis of those assets.
11. COMMITMENTS AND CONTINGENCIES
The Company is subject to extensive and evolving laws and regulations
and has implemented its own environmental safeguards to respond to regulatory
requirements. In the normal course of conducting its operations, Allied may
become involved in certain legal and administrative proceedings. Some of these
actions may result in fines, penalties or judgements against the Company which
may have an impact on earnings for a particular period. Management expects that
such matters in process at December 31, 1996 which have not been accrued in the
consolidated balance sheet will not have a material adverse effect on the
Company's consolidated liquidity, financial position or results from operations.
The consolidated federal income tax returns for the fiscal years ended
August 31, 1986, 1987 and 1988 of certain subsidiaries of the Company that were
acquired from Laidlaw in December 1996 (the "LSW Subsidiaries") have been under
audit by the Internal Revenue Service. In March 1994, the LSW Subsidiaries
received a Statutory Notice of Deficiency proposing that the LSW Subsidiaries
pay additional taxes relating to disallowed deductions in those income tax
returns (the "Tax Controversy"). The consolidated tax group of the LSW
Subsidiaries has also received notice that fiscal years 1992, 1993 and 1994 will
be examined regarding the Tax Controversy. The LSW Subsidiaries could be
directly liable for a substantial portion of any tax and interest assessed if
the disallowance of the deduction is sustained. In addition, under Treasury
Regulations promulgated under Section 1502 of the Internal Revenue Code ("IRC"),
each member of the consolidated tax group including each LSW Subsidiary, is or
could be severally liable for federal income tax liabilities of the entire
consolidated tax group, including any taxes due on the deemed sale of assets by
the LSW Subsidiaries pursuant to Section 338 of the IRC and all amounts at issue
in the Tax Controversy which are ultimately determined to be owed.
Any amounts at issue in the Tax Controversy and for which any LSW
Subsidiary may ultimately be found liable, are included in and covered by the
indemnification of the Company by Laidlaw set forth in the Stock Purchase
Agreement by and between the Company and Laidlaw, among others, dated September
17, 1996 (the "Purchase Agreement"). Further, the Company and Laidlaw, among
others, have entered into a Setoff Agreement, under which Laidlaw has agreed
that if the Tax Controversy results in any damage, liability or expense to any
LSW Subsidiary, and if Laidlaw fails to indemnify the Company against all such
damages, liabilities or expenses within 30 days of a demand for indemnification,
then the Company may set off the amount of all such damages, liabilities
53
<PAGE> 54
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
and expenses against all amounts then owed by the Company under the certain debt
issued to Laidlaw consisting primarily of the Allied Canada Debentures.
Other than to the extent contemplated in the Setoff Agreement, the
obligation of Laidlaw to indemnify the Company in respect of amounts at issue in
the Tax Controversy is a general, unsecured obligation of Laidlaw. The ability
of Laidlaw to pay and fulfill such indemnification obligation will depend on the
financial condition of Laidlaw at the time of any required performance of such
obligation.
In connection with certain acquisitions, the Company has entered into
agreements to pay royalties based on waste tonnage disposed at specified
landfills. The royalties are payable quarterly and the current amounts due are
included in the accompanying consolidated balance sheets. Additionally, the
Company has entered into a deferred royalty agreement of which the liability may
be converted into an interest bearing note or common shares.
Allied has operating lease agreements for service facilities, office
space and equipment. Future minimum payments under non-cancelable operating
leases with terms in excess of one year are as follows (in thousands):
<TABLE>
<CAPTION>
December 31, 1996
-----------------
<S> <C>
1997 $ 12,613
1998 9,566
1999 7,879
2000 5,489
2001 4,184
Thereafter 87,084
</TABLE>
Rental expense under such operating leases was $1,307,000, $2,775,000 and
$6,476,047 for the three years ended December 31, 1996, respectively.
The Company has entered into employment agreements with certain of its
executive officers for periods up to five years. The Company has agreed to
severance pay amounts equal to a multiple of defined compensation under certain
circumstances. In the event of a material change in control or termination of
all executive officers under such agreements, Allied would be required to make
payments of approximately $5.5 million.
Allied carries a broad range of insurance coverage for protection of
its assets and operations from certain risks including environmental impairment
liability insurance for certain landfills.
The Company has issued bank letters-of-credit, performance bonds and
other guarantees in the aggregate amount of approximately $53.7 million. These
financial instruments are issued in the normal course of business and are not
reflected in the accompanying balance sheets. Such financial instruments are to
be valued based on the amount of exposure under the instrument and the
likelihood of performance being required. Management does not expect any
material losses to result from these off balance sheet instruments based on
historical results, and therefore, is of the opinion that the fair value of
these instruments is zero.
54
<PAGE> 55
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
12. RELATED PARTY TRANSACTIONS
Transactions with related parties are entered into only upon approval
by a majority of the independent directors of the Company and only upon terms
comparable to those that would be available from unaffiliated parties.
The Company leases certain properties and equipment in Illinois from
related parties resulting from prior year acquisitions. In connection with these
leases, payments of $89,000, $69,000 and $45,000 for the three years ended
December 31, 1996, respectively, were made to officers of the Company.
In connection with certain acquisitions, previous owners are paid an
agreed upon amount not to compete with the Company. Annual payments of $88,000,
were made to officers of the Company for each of the three years ended December
31, 1996 related to these non-compete agreements.
In connection with certain acquisitions, previous owners agreed to
continue their existing personal guarantees on assumed indebtedness for a fee.
Payments of $20,000 were made to an officer of the Company for the year ended
December 31, 1994.
A Director is a partner in the firm which serves as the Company's
principal legal counsel.
During 1994, the Company purchased real property from an officer for
approximately $1 million. The real property was subsequently exchanged for a
transfer station and a materials recovery facility in the Chicago area
previously owned by an unrelated party. No gain or loss was recognized on the
exchange.
The Company made payments of $191,000 and $254,000 in 1994 and 1995,
respectively, on a life insurance policy for a related party assumed in a 1994
acquisition. A trust of the related party is the beneficiary of the policy.
In connection with the receipt in April 1995 of all permits necessary
to develop a landfill on certain real estate acquired in July 1992, the Company
was obligated to pay $5.6 million to the previous owners of the real estate,
including current stockholders of the Company. During the years ended December
31, 1995 and 1996, the Company paid $924,000 and $121,000, respectively, to
these stockholders. The Company has $1.9 million in promissory notes payable to
these stockholders outstanding at December 31, 1996.
55
<PAGE> 56
ALLIED WASTE INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
13. SUMMARIZED FINANCIAL INFORMATION OF ALLIED WASTE NORTH AMERICA, INC.
As discussed in Note 5, the 1996 Notes issued by Allied NA (a
consolidated subsidiary of the Company) are guaranteed by Allied. The separate
complete financial statements of Allied NA have not been included herein as such
disclosure is not considered to be material to the holders of the 1996 Notes.
However, summarized balance sheet information for Allied NA and subsidiaries as
of December 31, 1996 is as follows (in thousands):
Summarized Consolidated Balance Sheet Information
<TABLE>
<CAPTION>
December 31, 1996
-----------------
<S> <C>
Current assets.................................. $ 709,762
Property and equipment, net..................... 706,752
Goodwill........................................ 856,108
Other non-current assets........................ 44,927
Current liabilities............................. 682,686
Long-term debt, net of current portion 1,037,762
Due to parent................................... 275,558
Due to Allied Canada Finance, Ltd. 110,747
Other long-term obligations..................... 210,796
</TABLE>
On November 25, 1996, substantially all of the operating assets and
liabilities of Allied were contributed from Allied to Allied NA. The results of
operations since inception were not material except for the acquisition related
costs and unusual items (see Note 1).
14. SUBSEQUENT EVENTS
Subsequent to December 31, 1996, the Company purchased 2 operating
solid waste businesses for a total of approximately $58.9 million of which
approximately $6.5 million was paid for with approximately 750,000 shares of the
Company's common stock.
56
<PAGE> 57
ITEM 9. CHANGES IN AND DISAGREEMENTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information required by this item is incorporated by reference to the
material appearing under the heading "Election of Directors" in the Proxy
Statement for the 1997 Annual Meeting of Stockholders.
ITEM 11. EXECUTIVE COMPENSATION
Information required by this item is incorporated by reference to the
material appearing under the heading "Executive Compensation" in the Proxy
Statement for the 1997 Annual Meeting of Stockholders.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information required by this item is incorporated by reference to the
material appearing under the headings "Election of Directors" and "Certain
Stockholders" in the Proxy Statement for the 1997 Annual Meeting of
Stockholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information required by this item is incorporated by reference to the
material appearing under the heading "Certain Relationships and Related
Transactions" in the Proxy Statement for the 1997 Annual Meeting of
Stockholders.
PART IV
ITEM 14. FINANCIAL STATEMENT SCHEDULES, EXHIBITS AND REPORTS ON FORM 8-K
FINANCIAL STATEMENT SCHEDULES --
Schedules omitted since the information required to be submitted has
been included in the Consolidated Financial Statements of Allied Waste
Industries, Inc. or the notes thereto, or the required information is not
applicable.
Exhibits --
2.1 Stock Purchase Agreement dated September 17, 1996 among the Company,
Allied NA, 3294862 Canada Inc., Laidlaw Inc., Laidlaw Transportation,
Inc., Laidlaw Waste Systems, Inc., Laidlaw Waste Systems (Canada) Ltd.
and Laidlaw Medical Services Ltd. Exhibit 2.1 to the Company's Current
Report on Form 8-K dated October 2, 1996, is incorporated herein by
reference.
2.2 Purchase Agreement relating to the 1996 Notes dated November 25, 1996.
Exhibit 2.1 to the Company's Current Report on Form 8-K dated December
19, 1996, is incorporated herein by reference.
2.3 Share Purchase Agreement dated January 15, 1997 among the Company,
Allied Waste Holdings (Canada) Ltd., Laidlaw Waste Systems, Inc., USA
Waste Services, Inc. and Canadian Waste Services, Inc. Exhibit 10.0 to
the Company's Current Report on Form 8-K dated January 30, 1997, is
incorporated herein by reference.
57
<PAGE> 58
3.1 Amended Certificate of Incorporation of the Company.*
3.2 Certificate of Designation, Preferences, Rights and Limitations of 7%
Cumulative Convertible Preferred Stock, par value $.10 per share dated
April 27, 1994. Exhibit 3.2 to Post-Effective Amendment Number 1 to the
Company's Registration Statement on Form S-1 (No. 33-75070) is
incorporated herein by reference.
3.3 Amended and Restated Bylaws of the Company. Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q dated November 5, 1996, is
incorporated herein by reference.
4.1 Specimen certificate for shares of Common Stock par value $.01 per
share. Exhibit 4.2 of the Company's Registration Statement on Form S-1
(No. 33-48507) is incorporated herein by reference.
4.2 Indenture relating to the 1994 Notes dated January 15, 1994 between the
Company and First Trust National Association, as trustee ("First
Trust"). Exhibit 4.1 to the Company's Registration Statement on Form
S-1 (No. 33-73110) is incorporated herein by reference.
4.3 Specimen certificate representing the 1994 Notes. Exhibit 4.2 of the
Company's Registration Statement on Form S-1 (No. 33-48507) is
incorporated herein by reference.
4.4 Second Supplemental Indenture relating to the 1994 Notes dated June 30,
1994 between the Company and First Trust. Exhibit 1.1 to the Company's
Current Report on Form 8-K dated December 29, 1994, is incorporated
herein by reference.
4.5 Third Supplemental Indenture relating to the 1994 Notes dated January
31, 1995 between the Company and First Trust. Exhibit 10.3 to the
Company's Quarterly Report on Form 10-Q dated August 10, 1995, is
incorporated herein by reference.
4.6 Fourth Supplemental Indenture relating to the 1994 Notes dated January
23, 1996, between the Company and First Trust. Exhibit 10.1 to the
Company's Current Report on Form 8-K dated January 22, 1996, is
incorporated herein by reference.
4.7 Fifth Supplemental Indenture relating to the 1994 Notes dated July 30,
1996 between the Company and First Trust. Exhibit 10.2 to the Company's
Quarterly Report on Form 10-Q dated August 14, 1996, is incorporated
herein by reference.
4.8 Indenture relating to the 1996 Notes dated February 28, 1997 between
the Company and First Trust. Exhibit 4.1 to the Company's Registration
Statement on Form S-4 (No. 333- 22575) is incorporated herein by
reference.
4.9 1991 Incentive Stock Plan of the Company. Exhibit 10.T to the Company's
Form 10 dated May 14, 1991, is incorporated herein by reference.
4.10 1991 Non-Employee Director Stock Plan of the Company. Exhibit 10.U to
the Company's Form 10 dated May 14, 1991, is incorporated herein by
reference.
4.11 1993 Incentive Stock Plan of the Company. Exhibit 10.3 to the Company's
Registration Statement on Form S-1 (No. 33-73110) is incorporated
herein by reference.
4.12 1994 Amended and Restated Non-Employee Director Stock Option Plan of
the Company. Exhibit B to the Company's Definitive Proxy Statement in
accordance with Schedule 14A dated April 28, 1994, is incorporated
herein by reference.
4.13 Amendment to the 1994 Amended and Restated Non-Employee Director Stock
Option Plan. Exhibit 10.2 to the Company's Quarterly Report on Form
10-Q dated August 10, 1995, is incorporated herein by reference.
4.14 Amended and Restated 1994 Incentive Stock Plan. Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q dated May 31, 1996, is
incorporated herein by reference.
10.1 Employment Agreement dated May 18, 1992, between the Company and Roger
A. Ramsey, as amended. Exhibit 10.33 to the Company's Registration
Statement on Form S-1 (No. 33-37110) is incorporated herein by
reference.
10.2 Employment Agreement dated October 20, 1993, between the Company and
Thomas H. Van Weelden, as amended. Exhibit 10.32 to the Company's
Registration Statement on Form S-1 (No. 33-37110) is incorporated
herein by reference.
10.3 Employment Agreement dated January 3, 1994, between the Company and
Larry D. Henk, as amended. Exhibit 10.43 to the Company's Current
Report on Form S-1/A-1 (No. 33-75070) is incorporated herein by
reference.
10.4 Employment Agreement dated May 26, 1994, between the Company and H.
Steven Uthoff, as amended. Exhibit 10.45 to the Company's Current
Report on Form S-1/A-1 (No. 33-75070) is incorporated herein by
reference.
58
<PAGE> 59
10.5 Securities Purchase Agreement dated October 27, 1994, between the
Company and TPG Partners, L.P. (the "TPG Agreement"). Exhibit 1.1 to
the Company's Current Report on Form 8-K dated November 4, 1994, is
incorporated herein by reference.
10.6 First Amendment to the TPG Agreement dated December 1, 1994. Exhibit
1.4 to the Company's Current Report on Form 8-K/A-1 dated November 4,
1994, is incorporated herein by reference.
10.7 Second Amendment to the TPG Agreement dated December 9, 1994. Exhibit
1.5 to the Company's Current Report on Form 8-K/A-1 dated November 4,
1994, is incorporated herein by reference.
10.8 Third Amendment to the TPG Agreement dated December 16, 1994. Exhibit
1.4 to the Company's Current Report on Form 8-K/A-2 dated November 4,
1994, is incorporated herein by reference.
10.9 Fourth Amendment to the TPG Agreement dated December 30, 1994. Exhibit
1.1 to the Company's Current Report on Form 8-K/A-3 dated November 4,
1994, is incorporated herein by reference.
10.10 Agreement dated September 17, 1996, between Allied Waste Industries,
Inc., TPG Partners, L.P. and TPG Parallel I, L.P. Exhibit 10.1 to the
Company's Current Report on Form 8-K dated October 2, 1996, is
incorporated herein by reference.
10.11 Credit Agreement among the Company, Allied NA, and the various lenders
represented by Goldman Sachs Credit Partners, L.P., Credit Suisse and
Citibank, N.A. dated December 30, 1996.*
11.1 Statement regarding the computation of per share earnings -- primary.*
11.2 Statement regarding the computation of per share earnings -- fully
diluted.*
12 Ratio of earnings to fixed charges.*
21 Subsidiaries of the Registrant.*
24.1 Consent of Arthur Anderson LLP.*
27 Financial Data Schedule *
- ----------
* Filed herewith.
59
<PAGE> 60
REPORTS ON FORM 8-K DURING THE QUARTER ENDED DECEMBER 31, 1996--
October 2, 1996 The Company's current report on Form 8-K
reports that the Company entered into a
Stock Purchase Agreement to acquire the
solid waste management operations of Laidlaw
Inc.
November 29, 1996 The Company's current report on Form 8-K/A-1
reports pro forma financial statements
related to the acquisition of the solid
waste management operations of Laidlaw Inc.
December 19, 1996 The Company's current report on Form 8-K
reports the issuance of $525 million 10.25%
in Senior Subordinated Notes.
December 20, 1996 The Company's current report on Form 8-K/A-2
reports revised pro forma financial
statements related to the acquisition of the
solid waste management operations of Laidlaw
Inc.
December 27, 1996 The Company's current report on Form 8-K/A-3
reports revised pro forma financial
statements related to the acquisition of the
solid waste management operations of Laidlaw
Inc.
60
<PAGE> 61
SIGNATURES
Pursuant to the requirements of Sections 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, the Registrant, Allied Waste Industries, Inc., has
caused this Report to be signed on its behalf by the undersigned, in the City of
Scottsdale, State of Arizona, on March 27, 1997.
ALLIED WASTE INDUSTRIES, INC.
By:/s/HENRY L. HIRVELA
-----------------------
Henry L. Hirvela
Vice President-Chief Financial officer
(Principal Financial Officer)
By:/s/PETER S. HATHAWAY
-----------------------
Peter S. Hathaway
Vice President-Chief Accounting Officer
(Principal Accounting Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed by the following persons in the capacities indicated on March
27, 1997.
<TABLE>
<CAPTION>
Signature Title
-------------------------- ------------------------------------------------
<S> <C>
/s/ROGER A. RAMSEY Director, Chairman of the Board of Directors
-------------------- and Chief Executive Officer
Roger A. Ramsey
/s/THOMAS VAN WEELDEN Director, President and Chief Operating Officer
----------------------
Thomas Van Weelden
/s/HENRY L. HIRVELA Vice President - Chief Financial Officer
---------------------- (Principal Financial Officer)
Henry L. Hirvela
/s/PETER S. HATHAWAY Vice President - Chief Accounting Officer
---------------------- (Principal Accounting Officer)
Peter S. Hathaway
/s/DANIEL J. IVAN Director, Vice President
-----------------------
Daniel J. Ivan
/s/NOLAN LEHMANN Director
-----------------------
Nolan Lehmann
/s/ROBERT G. REEDY Director
-----------------------
Robert G. Reedy
/s/ALAN B. SHEPARD Director
-----------------------
Alan B. Shepard
----------------------- Director
James G. Coulter
</TABLE>
61
<PAGE> 62
SIGNATURES - (CONTINUED)
<TABLE>
<CAPTION>
<S> <C>
/s/JEFFREY A. SHAW Director
----------------------
Jeffrey A. Shaw
/s/JOHN M. LEWIS Director
-----------------------
John M. Lewis
/s/WILLIAM K. REILLY Director
-----------------------
William K. Reilly
/s/BRIAN A. O'LEARY Director
----------------------
Brian A. O'Leary
/s/JAMES R. BULLOCK Director
----------------------
James R. Bullock
/s/IVAN CAIRNS Director
-----------------------
Ivan Cairns
</TABLE>
62
<PAGE> 63
EXHIBIT INDEX
Exhibit # Exhibit Page
--------- ------- ----
2.1 Stock Purchase Agreement dated September 17, 1996 among the
Company, Allied NA, 3294862 Canada Inc., Laidlaw Inc., Laidlaw
Transportation, Inc., Laidlaw Waste Systems, Inc., Laidlaw
Waste Systems (Canada) Ltd. and Laidlaw Medical Services Ltd.
Exhibit 2.1 to the Company's Current Report on Form 8-K dated
October 2, 1996, is incorporated herein by reference.
2.2 Purchase Agreement relating to the 1996 Notes dated November
25, 1996. Exhibit 2.1 to the Company's Current Report on Form
8-K dated December 19, 1996, is incorporated herein by
reference.
2.3 Share Purchase Agreement dated January 15, 1997 among the
Company, Allied Waste Holdings (Canada) Ltd., Laidlaw Waste
Systems, Inc., USA Waste Services, Inc. and Canadian Waste
Services, Inc. Exhibit 10.0 to the Company's Current Report on
Form 8-K dated January 30, 1997, is incorporated herein by
reference.
3.1 Amended Certificate of Incorporation of the Company.*
3.2 Certificate of Designation, Preferences, Rights and Limitations
of 7% Cumulative Convertible Preferred Stock, par value $.10
per share dated April 27, 1994. Exhibit 3.2 to Post-Effective
Amendment Number 1 to the Company's Registration Statement on
Form S-1 (No. 33-75070) is incorporated herein by reference.
3.3 Amended and Restated Bylaws of the Company. Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q dated November 5, 1996,
is incorporated herein by reference.
4.1 Specimen certificate for shares of Common Stock par value $.01
per share. Exhibit 4.2 of the Company's Registration Statement
on Form S-1 (No. 33-48507) is incorporated herein by reference.
4.2 Indenture relating to the 1994 Notes dated January 15, 1994
between the Company and First Trust National Association, as
trustee ("First Trust"). Exhibit 4.1 to the Company's
Registration Statement on Form S-1 (No. 33-73110) is
incorporated herein by reference.
4.3 Specimen certificate representing the 1994 Notes. Exhibit 4.2
of the Company's Registration Statement on Form S-1 (No. 33-
48507) is incorporated herein by reference.
4.4 Second Supplemental Indenture relating to the 1994 Notes dated
June 30, 1994 between the Company and First Trust. Exhibit 1.1
to the Company's Current Report on Form 8-K dated December 29,
1994, is incorporated herein by reference.
4.5 Third Supplemental Indenture relating to the 1994 Notes dated
January 31, 1995 between the Company and First Trust. Exhibit
10.3 to the Company's Quarterly Report on Form 10-Q dated
August 10, 1995, is incorporated herein by reference.
4.6 Fourth Supplemental Indenture relating to the 1994 Notes dated
January 23, 1996, between the Company and First Trust. Exhibit
1.1 to the Company's Current Report on Form 8-K dated January
22, 1996, is incorporated herein by reference.
63
<PAGE> 64
Exhibit # Exhibit Page
--------- -------- ----
4.7 Fifth Supplemental Indenture relating to the 1994 Notes dated
July 30, 1996 between the Company and First Trust. Exhibit 10.2
to the Company's Quarterly Report on Form 10-Q dated August 14,
1996, is incorporated herein by reference.
4.8 Indenture relating to the 1996 Notes dated February 28, 1997
between the Company and First Trust. Exhibit 4.1 to the
Company's Registration Statement on Form S-4 (No. 333-22575) is
incorporated herein by reference.
4.9 1991 Incentive Stock Plan of the Company. Exhibit 10.T to the
Company's Form 10 dated May 14, 1991, is incorporated herein by
reference.
4.10 1991 Non-Employee Director Stock Plan of the Company. Exhibit
10.U to the Company's Form 10 dated May 14, 1991, is
incorporated herein by reference.
4.11 1993 Incentive Stock Plan of the Company. Exhibit 10.3 to the
Company's Registration Statement on Form S-1 (No. 33-73110) is
incorporated herein by reference.
4.12 1994 Amended and Restated Non-Employee Director Stock Option
Plan of the Company. Exhibit B to the Company's Definitive
Proxy Statement in accordance with Schedule 14A dated April 28,
1994, is incorporated herein by reference.
4.13 Amendment to the 1994 Amended and Restated Non-Employee
Director Stock Option Plan. Exhibit 10.2 to the Company's
Quarterly Report on Form 10-Q dated August 10, 1995, is
incorporated herein by reference.
4.14 Amended and Restated 1994 Incentive Stock Plan. Exhibit 10.1 to
the Company's Quarterly Report on Form 10-Q dated May 31, 1996,
is incorporated herein by reference.
10.1 Employment Agreement dated May 18, 1992, between the Company
and Roger A. Ramsey, as amended. Exhibit 10.33 to the Company's
Registration Statement on Form S-1 (No. 33-37110) is
incorporated herein by reference.
10.2 Employment Agreement dated October 20, 1993, between the
Company and Thomas H. Van Weelden, as amended. Exhibit 10.32 to
the Company's Registration Statement on Form S-1 (No. 33-37110)
is incorporated herein by reference.
10.3 Employment Agreement dated January 3, 1994, between the Company
and Larry D. Henk, as amended. Exhibit 10.43 to the Company's
Current Report on Form S-1/A-1 (No. 33-75070) is incorporated
herein by reference.
10.4 Employment Agreement dated May 26, 1994, between the Company
and H. Steven Uthoff, as amended. Exhibit 10.45 to the
Company's Current Report on Form S-1/A-1 (No. 33-75070) is
incorporated herein by reference.
10.5 Securities Purchase Agreement dated October 27, 1994, between
the Company and TPG Partners, L.P. (the "TPG Agreement").
Exhibit 1.1 to the Company's Current Report on Form 8-K dated
November 4, 1994, is incorporated herein by reference.
10.6 First Amendment to the TPG Agreement dated December 1, 1994.
Exhibit 1.4 to the Company's Current Report on Form 8-K/A-1
dated November 4, 1994, is incorporated herein by reference.
10.7 Second Amendment to the TPG Agreement dated December 9, 1994.
Exhibit 1.5 to the Company's Current Report on Form 8-K/A-1
dated November 4, 1994, is incorporated herein by reference.
10.8 Third Amendment to the TPG Agreement dated December 16, 1994.
Exhibit 1.4 to the Company's Current Report on Form 8-K/A-2
dated November 4, 1994, is incorporated herein by reference.
64
<PAGE> 65
Exhibit # Exhibit Page
--------- ------- ----
10.9 Fourth Amendment to the TPG Agreement dated December 30, 1994.
Exhibit 1.1 to the Company's Current Report on Form 8-K/A-3
dated November 4, 1994, is incorporated herein by reference.
10.10 Agreement dated September 17, 1996, between Allied Waste
Industries, Inc., TPG Partners, L.P. and TPG Parallel I, L.P.
Exhibit 10.1 to the Company's Current Report on Form 8-K dated
October 2, 1996, is incorporated herein by reference.
10.11 Credit Agreement among the Company, Allied NA, and the various
lenders represented by Goldman Sachs Credit Partners, L.P.,
Credit Suisse and Citibank, N.A. dated December 30, 1996.*
11.1 Statement regarding the computation of per share earnings --
primary.*
11.2 Statement regarding the computation of per share earnings --
fully diluted.*
12 Ratio of earning to fixed charges.*
21 Subsidiaries of the Registrant.*
24.1 Consent of Arthur Anderson LLP.*
27 Financial Data Schedule*
- ---------
* Filed herewith.
65
<PAGE> 1
Exhibit 3.1
AMENDED CERTIFICATE OF INCORPORATION
OF
ALLIED WASTE INDUSTRIES, INC.
ARTICLE I
The name of the corporation is ALLIED WASTE INDUSTRIES, INC.
ARTICLE II
The address of the corporation's registered office in the State of
Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware 19801.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
The purpose for which the corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
ARTICLE IV
(a) The total number of shares of all classes of stock which the
corporation shall have authority to issue is two hundred ten million
(210,000,000) shares, divided into the following classes: (i) 200,000,000 shares
of common stock, par value $.01 per share ("Common Stock"), and (ii) 10,000,000
shares of preferred stock, par value $.10 per share ("Preferred Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series. The board of directors is hereby vested with the authority to
fix by resolution the designations, and the powers, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions on series of shares of Preferred Stock, including,
without limitation, the dividend rate, conversion rights, voting rights,
redemption price and liquidation preference of any series of shares of
Preferred Stock, and to fix the number of shares constituting any such series,
and to increase or decrease the number of shares of any such series.
ARTICLE V
The governing board of the corporation shall be known as the board of
directors, and the number of directors comprising the same shall be determined
in accordance with the bylaws of the corporation. The initial board of
directors shall consist of three members. The name and mailing address of the
initial members of the board of directors, who shall hold office until the
first annual meeting of the stockholders, or until their successors are elected
and qualify, are as follows:
Bruce G. Lessey 827 East Rogers Street
<PAGE> 2
Houston, Texas 77022
Alan W. Goldsberry 827 East Rogers Street
Houston, Texas 77022
David M. K. Ruth 2929 Allen Parkway, Suite 2500
Houston, Texas 77019
ARTICLE VI
The board of directors of the corporation is expressly and solely
authorized to make, alter or repeal bylaws of the corporation.
ARTICLE VII
No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that the foregoing clause shall not apply
to any liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
the law, (iii) under Section 174 of the General Corporation Law of the State of
Delaware, or (iv) for any transaction from which the director derived an
improper personal benefit. This Article shall not eliminate or limit the
personal liability of a director for any act or omission occurring prior to
the date this Article becomes effective.
ARTICLE VIII
8.1 The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
8.2 The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee
or agent of
2
<PAGE> 3
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
8.3 To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 8.1 and 8.2 of this Article,
or in defense of any claim, issue or matter therein, the corporation shall
indemnify such director, officer, employee or agent against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
8.4 Any indemnification under Sections 8.1 and 8.2 of this Article (unless
ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Sections 8.1 and 8.2 of this
Article. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
8.5 Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this Article. Such expenses incurred by other
employees and agents shall be so paid upon such terms and conditions, if any, as
the board of directors deems appropriate.
8.6 The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office.
8.7 The corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
3
<PAGE> 4
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the General Corporation Law of the State of Delaware or
this Article.
8.8 For purposes of this Article, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
8.9 For purposes of this Article, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
8.10 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
ARTICLE IX
Whenever a compromise or arrangement is proposed between the
corporation and its creditors or any class of them and/or between the
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the corporation under
the provisions of section 291 of the General Corporation Law of the State of
Delaware or on the application of trustees in dissolution or of any receiver or
receivers appointed for the corporation under the provisions of section 279 of
the General Corporation Law of the State of Delaware, order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the corporation, as the case may be, to be summoned in such
manner as the court directs. If a majority in number, representing
three-fourths in value, of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the corporation, as the
4
<PAGE> 5
case may be, agree to any compromise or arrangement and to any reorganization
of the corporation as a consequence of such compromise or arrangement and the
said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all of the stockholders or class of stockholders, of the
corporation, as the case may be, and also on the corporation.
ARTICLE X
The corporation is to have perpetual existence.
ARTICLE XI
The name and address of the incorporator is Carolyn G. Hite, Porter &
Clements, 700 Louisiana, Suite 3500, Houston, Texas 77002-2730.
I, the undersigned, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring that this is my
act and deed and that the facts herein stated are true and accordingly I have
hereunto set my hand this 13th day of July, 1989.
/s/ CAROLYN G. HITE
--------------------------------------
Carolyn G. Hite
5
<PAGE> 6
THE STATE OF TEXAS
COUNTY OF HARRIS
Before me, the undersigned authority, on this date personally appeared
Carolyn G. Hite, known to me to be the person whose name is subscribed to the
foregoing certificate, and acknowledged to me that she executed said
certificate as his free act and deed and that the facts therein stated are true.
Given under my hand and seal this 13th day of July, 1989.
/s/ CAROLE BUCHANAN
____________________________________
Notary Public in and for
The State of TEXAS
Carole Buchanan
____________________________________
Printed Name of Notary Public
My Commission Expires 6/3/93
[NOTARY SEAL]
6
<PAGE> 1
Exhibit 10.11
CREDIT AGREEMENT
Dated as of December 30, 1996,
among
ALLIED WASTE NORTH AMERICA, INC.,
ALLIED WASTE INDUSTRIES, INC.,
THE LENDERS REFERRED TO HEREIN,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Syndication Agent,
CREDIT SUISSE,
as Swingline Lender, Issuing Bank, Administrative Agent
and Collateral Agent
and
CITIBANK, N.A.,
as Documentation Agent
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms................................................. 2
SECTION 1.02. Terms Generally............................................... 29
ARTICLE II
The Credits
SECTION 2.01. Commitments.................................................... 30
SECTION 2.02. Loans.......................................................... 30
SECTION 2.03. Borrowing Procedure............................................ 32
SECTION 2.04. Evidence of Debt; Repayment of Loans........................... 33
SECTION 2.05. Fees........................................................... 33
SECTION 2.06. Interest on Loans.............................................. 34
SECTION 2.07. Default Interest............................................... 35
SECTION 2.08. Alternate Rate of Interest..................................... 35
SECTION 2.09. Termination and Reduction of Commitments....................... 35
SECTION 2.10. Conversion and Continuation of Borrowings...................... 36
SECTION 2.11. Repayment of Term Borrowings and AXELs Borrowings.............. 38
SECTION 2.12. Optional Prepayments........................................... 42
SECTION 2.13. Mandatory Prepayments.......................................... 43
SECTION 2.14. Reserve Requirements; Change in Circumstances.................. 46
SECTION 2.15. Change in Legality............................................. 47
SECTION 2.16. Indemnity...................................................... 48
SECTION 2.17. Pro Rata Treatment............................................. 48
SECTION 2.18. Sharing of Setoffs............................................. 49
SECTION 2.19. Payments....................................................... 49
SECTION 2.20. Taxes.......................................................... 50
SECTION 2.21. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate............................ 52
SECTION 2.22. Swingline Loans................................................ 53
SECTION 2.23. Letters of Credit.............................................. 54
<PAGE> 3
Contents, p. 2
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers........................................... 59
SECTION 3.02. Authorization.................................................. 59
SECTION 3.03. Enforceability................................................. 60
SECTION 3.04. Governmental Approvals......................................... 60
SECTION 3.05. Financial Statements........................................... 60
SECTION 3.06. No Material Adverse Change..................................... 61
SECTION 3.07. Title to Properties; Possession Under Leases................... 61
SECTION 3.08. Subsidiaries................................................... 61
SECTION 3.09. Litigation; Compliance with Laws............................... 61
SECTION 3.10. Agreements..................................................... 61
SECTION 3.11. Federal Reserve Regulations.................................... 62
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act........................................ 62
SECTION 3.13. Use of Proceeds................................................ 62
SECTION 3.14. Tax Returns.................................................... 62
SECTION 3.15. No Material Misstatements...................................... 62
SECTION 3.16. Employee Benefit Plans......................................... 62
SECTION 3.17. Environmental Matters.......................................... 63
SECTION 3.18. Insurance...................................................... 64
SECTION 3.19. Security Documents............................................. 64
SECTION 3.20. Labor Matters.................................................. 65
SECTION 3.21. Solvency....................................................... 66
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events.............................................. 66
SECTION 4.02. First Credit Event............................................. 67
SECTION 4.03. Acquisition Loan Credit Events................................. 73
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties........................... 74
SECTION 5.02. Insurance...................................................... 74
SECTION 5.03. Obligations and Taxes.......................................... 75
<PAGE> 4
Contents, p. 3
SECTION 5.04. Financial Statements, Reports, etc............................ 75
SECTION 5.05. Litigation and Other Notices.................................. 77
SECTION 5.06. Employee Benefits............................................. 77
SECTION 5.07. Maintaining Records; Access to Properties and Inspections..... 77
SECTION 5.08. Use of Proceeds............................................... 77
SECTION 5.09. Environmental Laws............................................ 78
SECTION 5.10. Preparation of Environmental Reports.......................... 78
SECTION 5.11. Further Assurances............................................ 78
SECTION 5.12. Compliance with Terms of Leaseholds........................... 79
SECTION 5.13. Performance of Material Agreements............................ 79
SECTION 5.14. Interest Rate Protection Agreements........................... 79
SECTION 5.15. Senior Convertible Debentures................................. 80
SECTION 5.16. Concentration and Disbursement Accounts....................... 80
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness.................................................. 80
SECTION 6.02. Liens......................................................... 82
SECTION 6.03. No Other Negative Pledge...................................... 84
SECTION 6.04. Sale and Lease-Back Transactions.............................. 84
SECTION 6.05. Investments, Loans and Advances............................... 84
SECTION 6.06. Mergers, Consolidations, Sales of Assets
and Acquisitions......................................... 86
SECTION 6.07. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends............................ 87
SECTION 6.08. Transactions with Affiliates.................................. 88
SECTION 6.09. Business of Allied, Borrower, Allied Finance and
Subsidiaries............................................. 88
SECTION 6.10. Other Indebtedness and Agreements............................. 88
SECTION 6.11. Capital Expenditures.......................................... 89
SECTION 6.12. Fixed Charge Coverage Ratio................................... 90
SECTION 6.13. Leverage Ratio................................................ 90
SECTION 6.14. Senior Debt Ratio............................................. 91
SECTION 6.15. Interest Expense Coverage Ratio............................... 92
ARTICLE VII
Events of Default............................................................92
<PAGE> 5
Contents, p. 4
ARTICLE VIII
The Administrative Agent, the Syndication Agent,the Documentation
Agent and the Collateral Agent................................ 95
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.............................................. 97
SECTION 9.02. Survival of Agreement................................ 98
SECTION 9.03. Binding Effect....................................... 98
SECTION 9.04. Successors and Assigns............................... 98
SECTION 9.05. Expenses; Indemnity.................................. 101
SECTION 9.06. Right of Setoff...................................... 102
SECTION 9.07. APPLICABLE LAW....................................... 102
SECTION 9.08. Waivers; Amendment................................... 103
SECTION 9.09. Interest Rate Limitation............................. 104
SECTION 9.10. Entire Agreement..................................... 104
SECTION 9.11. WAIVER OF JURY TRIAL................................. 104
SECTION 9.12. Severability......................................... 104
SECTION 9.13. Counterparts......................................... 105
SECTION 9.14. Headings............................................. 105
SECTION 9.15. Jurisdiction; Consent to Service of Process.......... 105
SECTION 9.16. Judgment Currency.................................... 105
SECTION 9.17. Confidentiality...................................... 106
Exhibits and Schedules
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Allied Finance Collateral Covenant Agreement
Exhibit C Form of Allied Finance Guarantee Agreement
Exhibit D Form of Allied Finance Pledge Agreement
Exhibit E Form of Allied Guarantee Agreement
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Borrowing Request
Exhibit H-1 Form of Canadian Collateral Covenant Agreement
Exhibit H-2 Form of Canadian Debenture
Exhibit H-3 Form of Canadian Debenture Pledge Agreement
Exhibit H-4 Form of Canadian General Assignment of Book Debts
Exhibit H-5 Form of Canadian Securities Pledge Agreement
<PAGE> 6
Contents, p. 5
<TABLE>
<S> <C>
Exhibit H-6 Form of Canadian Subsidiary Guarantee Agreement (Quebec)
Exhibit H-7 Form of Hypothec
Exhibit I Form of Indemnity, Subrogation and Contribution Agreement
Exhibit J Form of Pledge Agreement
Exhibit K Form of Pledge Intercreditor Agreement
Exhibit L Form of Security Agreement
Exhibit M Form of Subsidiary Guarantee Agreement
Exhibit N-1 Form of Opinion of Porter & Hedges, L.L.P., counsel for Allied, the
Borrower and the Subsidiaries
Exhibit N-2 Form of Opinion of Thomas K. Kehoe, Esq., internal counsel for Allied,
the Borrower and the Subsidiaries
Exhibit N-3 Form of Opinion of Davies, Ward & Beck, special Canadian counsel for
Allied, the Borrower and the Subsidiaries and Canadian Local
Counsel
Exhibit N-4 Form of Opinion of Ivan R. Cairns, Esq., internal counsel for Laidlaw
and the Laidlaw Subsidiaries
Exhibit O Form of Subordination Provisions
Schedule 1 Laidlaw Subsidiaries
Schedule 1.01(a) Back-up Letters of Credit
Schedule 1.01(b) Existing Letters of Credit
Schedule 1.01(c) Laidlaw Acquired Indebtedness
Schedule 1.01(d) Subsidiary Guarantors
Schedule 2.01 Lenders
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 4.02(a) Canadian Local Counsel
Schedule 4.02(p) Existing Preferred Stock
Schedule 6.01(a) Indebtedness
Schedule 6.02(a) Liens
</TABLE>
<PAGE> 7
CREDIT AGREEMENT dated as of December 30,
1996, among ALLIED WASTE NORTH AMERICA, INC.
(formerly known as Allied Holdings (United States),
Inc.), a Delaware corporation (the "Borrower"),
ALLIED WASTE INDUSTRIES, INC., a Delaware corporation
("Allied"), the Lenders (as defined in Article I),
GOLDMAN SACHS CREDIT PARTNERS L.P., a New York
limited partnership, as syndication agent (in such
capacity, the "Syndication Agent") for the Lenders,
CREDIT SUISSE, a bank organized under the laws of
Switzerland, acting through its New York branch, as
swingline lender (in such capacity, the "Swingline
Lender"), as issuing bank (in such capacity, the
"Issuing Bank"), as administrative agent (in such
capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral
Agent") for the Lenders and CITIBANK, N.A., a
national banking association, as documentation agent
(in such capacity, the "Documentation Agent") for the
Lenders.
Pursuant to the Stock Purchase Agreement dated as of September 17,
1996, as amended (together with all exhibits and schedules thereto, the "Stock
Purchase Agreement"), among Allied, the Borrower, Allied Canada (such term and
each other capitalized term used but not defined herein having the meaning given
it in Article I), Laidlaw Inc., a Canadian corporation ("Laidlaw"), Laidlaw
Transportation, Inc., a Delaware corporation and an indirect wholly owned
subsidiary of Laidlaw ("LTI"), Laidlaw Waste Systems, Inc., a Delaware
corporation and a wholly owned subsidiary of LTI, Laidlaw Waste Systems (Canada)
Ltd., a Canadian corporation and a wholly owned subsidiary of Laidlaw, and
Laidlaw Medical Services Ltd., a Canadian corporation and a wholly owned
subsidiary of Laidlaw, Allied will acquire (the "Acquisition") from Laidlaw all
the capital stock of the subsidiaries of Laidlaw (the "Laidlaw Subsidiaries")
that conduct Laidlaw's solid waste business and that are listed on Schedule 1
hereto for the aggregate consideration of (a) $1,200,000,000 in cash, subject to
adjustment pursuant to the Stock Purchase Agreement (the "Cash Consideration")
and (b) the issuance to Laidlaw of (i) 14,600,000 shares of common stock of
Allied, (ii) the Laidlaw Warrant, (iii) the Laidlaw Junior Debenture and (iv)
the Laidlaw Zero Debenture. In connection with the Acquisition, the Borrower
will issue the Senior Subordinated Notes. Upon consummation of the Acquisition,
Allied will own directly 100% of the capital stock of the Borrower and Allied
Finance, and the Borrower will own, directly or indirectly, all of the
Subsidiaries (other than Allied Finance).
The Borrower has requested the Lenders to extend credit in the form of
(a) Term Loans on the Closing Date, in an aggregate principal amount of
$475,000,000, (b) AXELs*Series A Loans on the Closing Date, in an aggregate
principal amount of $100,000,000, (c) AXELs Series B Loans on the Closing Date,
in an aggregate principal amount of $200,000,000, (d) AXELs Series C Loans on
the Closing Date, in an aggregate principal amount of $200,000,000, and (e)
Revolving Loans at any time and from time to time prior to the Revolving Credit
Maturity Date, in an aggregate principal amount at any time outstanding not in
excess of $300,000,000 (subject to the limitations set forth herein). The
Borrower has requested the
- ----------
*AXEL is a registered service mark of Goldman, Sachs & Co.
<PAGE> 8
2
Revolving Credit Lenders to extend credit, at any time and from time to time
prior to the Acquisition Loan Termination Date, in the form of Acquisition Loans
in an aggregate principal amount at any time outstanding not in excess of
$100,000,000. The Borrower has requested the Swingline Lender to extend credit,
at any time and from time to time prior to the Revolving Credit Maturity Date,
in the form of Swingline Loans in an aggregate principal amount at any time
outstanding not in excess of $20,000,000. The Borrower has requested the Issuing
Bank to issue letters of credit, in an aggregate face amount at any time
outstanding not in excess of $150,000,000 to support payment obligations
incurred in the ordinary course of business by the Borrower and the
Subsidiaries, and to provide financial assurance as required by regulators for
Allied's, the Borrower's and the Subsidiaries' closure and post-closure
obligations.
The proceeds of the Term Loans and the AXELs Loans, together (if
necessary) with a portion of the proceeds of Revolving Loans, are to be used
solely (a) to pay a portion of the Cash Consideration, (b) to refinance the
principal of, and to pay all interest, fees and other amounts payable in respect
of, the outstanding loans under the Existing Credit Agreement and (c) to pay
related fees and expenses. The proceeds of the Revolving Loans (other than the
Revolving Loans used for the purposes specified in the immediately preceding
sentence and other than Acquisition Loans) and the Swingline Loans are to be
used solely for general corporate purposes. The proceeds of the Acquisition
Loans are to be used solely to finance acquisitions permitted hereunder.
The Lenders and the Swingline Lender are willing to extend such credit
to the Borrower and the Issuing Bank is willing to issue letters of credit for
the account of Allied, the Borrower and the Subsidiaries on the terms and
subject to the conditions set forth herein. Accordingly, the parties hereto
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"Account Parties" shall mean (a) the Borrower, (b) Allied and (c) each
other Subsidiary of the Borrower on whose behalf a Letter of Credit is requested
pursuant to Section 2.23.
"Accounts" shall have the meaning assigned to such term in the Security
Agreement.
"Acquired Business" shall mean (a) any person at least a majority of
the capital stock of which is acquired on or after January 1, 1997, by the
Borrower or a wholly owned subsidiary of the Borrower and (b) any assets
constituting a discrete business or operating unit acquired on or after January
1, 1997, by the Borrower or a wholly owned subsidiary of the Borrower.
"Acquired Entity" shall have the meaning assigned to such term in
Section 6.05(j).
<PAGE> 9
3
"Acquired Indebtedness" shall have the meaning assigned to such term in
Section 6.01(d).
"Acquired Revenues" shall mean, with respect to any period, the
revenues attributable to Acquired Businesses during such period; provided that,
in the event the Borrower acquires, directly or indirectly, less than all the
capital stock of an Acquired Business, only the percentage of revenues of such
Acquired Business attributable to the Borrower's interest in such Acquired
Business shall be deemed "Acquired Revenues" for purposes of this Agreement.
"Acquisition Borrowing" shall mean a Revolving Credit Borrowing
comprised of Acquisition Loans.
"Acquisition Loan Repayment Amount" shall have the meaning assigned to
such term in Section 2.11(a)(v).
"Acquisition Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(v).
"Acquisition Loan Termination Date" shall mean the date that is three
years and six months after the Closing Date.
"Acquisition Loans" shall mean any Revolving Loan used to pay the cash
consideration of any Permitted Acquisition.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Allied Canada" shall mean Allied Waste Holdings (Canada) Ltd., a
Canadian corporation and a wholly owned subsidiary of the Borrower.
"Allied Canada Debentures" shall mean the Allied Canada Junior
Debenture and the Allied Canada Zero Debenture.
<PAGE> 10
4
"Allied Canada Junior Debenture" shall mean the 7% Junior Subordinated
Debenture due 2008 of Allied Canada issued to Laidlaw on the Closing Date in an
aggregate principal amount of $150,000,000, and which is immediately thereafter
exchanged for the Laidlaw Junior Debenture.
"Allied Canada Zero Debenture" shall mean the Zero Coupon Junior
Subordinated Debenture due 2008 of Allied Canada issued to Laidlaw on the
Closing Date in an aggregate principal amount of $168,300,000, and which is
immediately thereafter exchanged for the Laidlaw Zero Debenture.
"Allied Finance" shall mean Allied Waste Finance (Canada) Ltd., a
Canadian corporation and wholly owned Subsidiary of Allied.
"Allied Finance Collateral Covenant Agreement" shall mean the Allied
Finance Collateral Covenant Agreement substantially in the form of Exhibit B
given by Allied Finance in favor of the Collateral Agent for the benefit of the
Secured Parties.
"Allied Finance Guarantee Agreement" shall mean the Allied Finance
Guarantee Agreement substantially in the form of Exhibit C, given by Allied
Finance in favor of the Collateral Agent for the benefit of the Secured Parties.
"Allied Finance Pledge Agreement" shall mean the Allied Finance Pledge
Agreement substantially in the form of Exhibit D, between Allied Finance and the
Collateral Agent for the benefit of the Secured Parties.
"Allied Guarantee Agreement" shall mean the Allied Guarantee Agreement,
substantially in the form of Exhibit E, made by Allied in favor of the
Collateral Agent for the benefit of the Secured Parties.
"Applicable EBITDA Margin" shall mean, as of any date of determination,
(a) from and including the Closing Date through and including March 31, 1997,
.302 (i.e., the quotient obtained by dividing (i) Allied's Consolidated EBITDA
for the nine-month period ended September 30, 1996 by (ii) Allied's consolidated
revenues for the nine-month period ended September 30, 1996), (b) from and
including April 1, 1997 through and including December 31, 1997, the quotient
obtained by dividing (i) Allied's Consolidated EBITDA for the year ended
December 31, 1996 by (ii) Allied's consolidated revenues for the year ended
December 31, 1996 and (c) from and including January 1, 1998 and thereafter, the
quotient obtained by dividing (i) Allied's Consolidated EBITDA for the period of
12 consecutive fiscal months most recently ended prior to such date and for
which internal financial statements have been made available to the
Administrative Agent by (ii) Allied's consolidated revenues for such period, all
as determined on a consolidated basis in accordance with GAAP.
"Applicable Percentage" shall mean, for any day, with respect to (a)
any Eurodollar Term Loans, Eurodollar Revolving Loans or L/C Participation Fees,
(b) any Base Rate Term Loans or Base Rate Revolving Loans or (c) the Commitment
Fees, as the case may be, the applicable percentage set forth below under the
caption (i) "Eurodollar Spread", (ii) "Base Rate
<PAGE> 11
5
Spread" or (iii) "Fee Percentage", respectively, based upon the Leverage Ratio
as of the relevant date of determination:
<TABLE>
<CAPTION>
Eurodollar Base Rate Fee
Leverage Ratio Spread Spread Percentage
- -------------- ------ ------ ----------
<S> <C> <C> <C>
Category 1
Greater than or equal to
4.00 to 1.00 2.50% 1.50% .50%
Category 2
Less than 4.00 to 1.00 but
greater than or equal to
3.50 to 1.00 2.25% 1.25% .50%
Category 3
Less than 3.50 to 1.00 but
greater than or equal to
3.00 to 1.00 1.75% .75% .375%
Category 4
Less than 3.00 to 1.00 1.25% .25% .375%
</TABLE>
Each change in the Applicable Percentage resulting from a change in the
Leverage Ratio shall be effective with respect to all Term Loans, all Revolving
Loans and all Letters of Credit outstanding on and after the date the financial
statements and certificates required by Section 5.04(a) or (b) indicating such
change are delivered to the Administrative Agent until the date immediately
preceding the next date such financial statements and certificates indicating
another such change are delivered to the Administrative Agent. Notwithstanding
the foregoing, (a) until the first anniversary of the Closing Date, (b) at any
time during which the Borrower has failed to deliver the financial statements
and certificates required by Section 5.04(a) or (b), or (c) at any time after
the occurrence and during the continuance of an Event of Default, the Leverage
Ratio shall be deemed to be in Category 1 for purposes of determining the
Applicable Percentage.
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor thereto) for insurance
by such Corporation (or such successor) of time deposits made in dollars at the
Administrative Agent's domestic offices.
<PAGE> 12
6
"Asset Sale" shall mean the sale, lease, transfer or other disposition
in one transaction or a series of related transactions (by way of merger or
otherwise but excluding a sale in connection with a sale and leaseback
transaction) by Allied, the Borrower or any of the Subsidiaries to any person
other than Allied, the Borrower or any wholly owned Subsidiary of (a) any
capital stock of any of the Subsidiaries or (b) any other assets of Allied, the
Borrower or any of the Subsidiaries (other than inventory, obsolete or worn out
assets, scrap, Permitted Investments and cash and cash equivalents, in each case
disposed of in the ordinary course of business for fair value), except for (i)
the sale of Specialized Waste, (ii) sales, leases, transfers or other
dispositions in one transaction or a series of related transactions during any
fiscal year having an aggregate value not in excess of $2,500,000 and (iii) any
substantially contemporaneous exchange (including by way of a substantially
contemporaneous purchase and sale) of discrete assets of Allied, the Borrower or
any Subsidiary for one or more other assets used for similar purposes, in each
case to the extent that no net cash proceeds are received by Allied, the
Borrower or any Subsidiary as consideration in connection with such exchange,
provided that Allied, the Borrower or such Subsidiary complies with Section 5.11
with respect to the property received by Allied, the Borrower or such Subsidiary
pursuant to such exchange.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit F or such other form as shall be approved by the
Administrative Agent.
"AXELs Commitments" shall mean the AXELs Series A Commitment, the AXELs
Series B Commitment and the AXELs Series C Commitment.
"AXELs Loans" shall mean the AXELs Series A Loans, the AXELs Series B
Loans and the AXELs Series C Loans.
"AXELs Repayment Amounts" shall mean, for any period, the AXELs Series
A Repayment Amounts, the AXELs Series B Repayment Amounts and the AXELs Series C
Repayment Amounts payable during such period.
"AXELs Repayment Dates" shall mean the AXELs Series A Repayment Dates,
the AXELs Series B Repayment Dates and the AXELs Series C Repayment Dates.
"AXELs Series A Borrowing" shall mean a Borrowing comprised of AXELs
Series A Loans.
"AXELs Series A Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make AXELs Series A Loans hereunder as set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender assumed its AXELs Series A Commitment, as applicable, as the same
may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.
"AXELs Series A Loans" shall mean the loans made by the Lenders to the
Borrower pursuant to clause (b) of Section 2.01. Each AXELs Series A Loan shall
be either a Eurodollar AXELs Loan or an Base Rate AXELs Loan.
<PAGE> 13
7
"AXELs Series A Maturity Date" shall mean the date that is six years
and six months after the Closing Date.
"AXELs Series A Repayment Amount" shall have the meaning assigned to
such term in Section 2.11(a)(ii).
"AXELs Series A Repayment Date" shall have the meaning assigned to such
term in Section 2.11(a)(ii).
"AXELs Series B Borrowing" shall mean a Borrowing comprised of AXELs
Series B Loans.
"AXELs Series B Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make AXELs Series B Loans hereunder as set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender assumed its AXELs Series B Commitment, as applicable, as the same
may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.
"AXELs Series B Loans" shall mean the loans made by the Lenders to the
Borrower pursuant to clause (c) of Section 2.01. Each AXELs Series B Loan shall
be either a Eurodollar AXELs Loan or a Base Rate AXELs Loan.
"AXELs Series B Maturity Date" shall mean the date that is seven years
and six months after the Closing Date.
"AXELs Series B Repayment Amount" shall have the meaning assigned to
such term in Section 2.11(a)(iii).
"AXELs Series B Repayment Date" shall have the meaning assigned to such
term in Section 2.11(a)(iii).
"AXELs Series C Borrowing" shall mean a Borrowing comprised of AXELs
Series C Loans.
"AXELs Series C Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make AXELs Series C Loans hereunder as set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender assumed its AXELs Series C Commitment, as applicable, as the same
may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.
"AXELs Series C Loans" shall mean the loans made by the Lenders to the
Borrower pursuant to clause (d) of Section 2.01. Each AXELs Series C Loan shall
be either a Eurodollar AXELs Loan or a Base Rate AXELs Loan.
<PAGE> 14
8
"AXELs Series C Maturity Date" shall mean the date that is eight years
and six months after the Closing Date.
"AXELs Series C Repayment Amount" shall have the meaning assigned to
such term in Section 2.11(a)(iv).
"AXELs Series C Repayment Date" shall have the meaning assigned to such
term in Section 2.11(a)(iv).
"Back-up Letter of Credit" shall mean any Letter of Credit issued to
support any letter of credit that (a) exists on the Closing Date and (b) is set
forth on Schedule 1.01(a).
"Base Rate" shall mean, for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1/2
of 1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or both for any
reason, including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Base Rate shall be determined without regard to clause (b) or (c), or both,
of the preceding sentence, as appropriate, until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate, respectively. The term "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Administrative Agent as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective on the date
such change is publicly announced as being effective. The term "Base CD Rate"
shall mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) Statutory Reserves and (b) the Assessment Rate. The term "Federal Funds
Effective Rate" shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for
the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Base Rate AXELs Borrowing" shall mean a Borrowing comprised of Base
Rate AXELs Loans.
"Base Rate AXELs Loan" shall mean any AXELs Loan bearing interest at a
rate determined by reference to the Base Rate in accordance with the provisions
of Article II.
"Base Rate Borrowing" shall mean a Borrowing comprised of Base Rate
Loans.
"Base Rate Loan" shall mean any Base Rate Term Loan, Base Rate AXELs
Loan or Base Rate Revolving Loan.
<PAGE> 15
9
"Base Rate Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Base Rate in accordance with
the provisions of Article II.
"Base Rate Term Borrowing" shall mean a Borrowing comprised of Base
Rate Term Loans.
"Base Rate Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Base Rate in accordance with the provisions
of Article II.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit G.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Canadian Collateral Covenant Agreement" shall mean each Collateral
Covenant Agreement, substantially in the form of Exhibit H-1, given by Allied
Canada and by each of the Canadian Subsidiaries party to any such agreement for
the benefit of the Secured Parties.
"Canadian Debenture" shall mean any Demand Debenture, substantially in
the form of Exhibit H-2, given by Allied Canada or by any of the Canadian
Subsidiaries party to any such Demand Debenture for the benefit of the Secured
Parties.
"Canadian Debenture Pledge Agreement" shall mean any Debenture Pledge
Agreement, substantially in the form of Exhibit H-3, given by Allied Canada or
by any of the Canadian Subsidiaries party to any such Debenture Pledge Agreement
for the benefit of the Secured Parties.
"Canadian General Assignment of Book Debts" shall mean any General
Assignment of Books Debts, substantially in the form of Exhibit H-4, given by
Allied Canada and by each of the Canadian Subsidiaries party to any such General
Assignment of Book Debts for the benefit of the Secured Parties.
"Canadian Perfection Certificate" shall have the meaning assigned to
such term in Section 3.19(d).
"Canadian Securities Pledge Agreement" shall mean the Securities Pledge
Agreement, substantially in the form of Exhibit H-5, given by Allied Canada,
Laidlaw Waste Systems (Canada) Ltd. or by any other Canadian Subsidiaries party
thereto for the benefit of the Secured Parties.
<PAGE> 16
10
"Canadian Security Documents" shall mean (a) the Allied Finance
Collateral Covenant Agreement, each Canadian Debenture, each Canadian Debenture
Pledge Agreement, each Canadian General Assignment of Book Debts, each Canadian
Securities Pledge Agreement, each Canadian Collateral Covenant Agreement and
each Hypothec and (b) each other security agreement, mortgage or other
instrument or document executed and delivered by a Canadian Subsidiary pursuant
to any of the foregoing or pursuant to Section 5.11.
"Canadian Subsidiaries" shall mean all Subsidiaries organized under the
laws of Canada or any Province thereof.
"Canadian Subsidiary Guarantee Agreement (Quebec)" shall mean the
Canadian Subsidiary Guarantee Agreement (Quebec) substantially in the form of
Exhibit H-6, given by Bestan Inc. in favor of the Collateral Agent for the
benefit of the Secured Parties.
"Capital Expenditures" shall mean, for any period, the aggregate amount
of all expenditures (whether paid in cash or other consideration or accrued as a
liability) by Allied, the Borrower and its Subsidiaries during such period that,
in accordance with GAAP, are or should be included in "additions to property,
plant or equipment" or similar items reflected in the consolidated statement of
cash flows of Allied, the Borrower and its Subsidiaries for such period;
provided, however, that Capital Expenditures shall not include (i) expenditures
made to consummate the Transactions, (ii) expenditures classified as a Permitted
Acquisition or (iii) expenditures made by an Acquired Entity prior to the time
such Acquired Entity was acquired by the Borrower or any Subsidiary pursuant to
a Permitted Acquisition.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other similar amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Casualty Event" shall mean an event pursuant to which Allied, the
Borrower or any of the Subsidiaries has the right to collect insurance proceeds
under any insurance policies with respect to any insured casualty or other
insured damage to any property of Allied, the Borrower or any of the
Subsidiaries.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 promulgated under the
Securities Exchange Act of 1934 as in effect on the date hereof) shall have
acquired directly or indirectly, beneficial ownership of shares representing
more than 35% of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of Allied; (b) a majority of the seats (other than
vacant seats) on the board of directors of Allied shall at any time be occupied
by persons who were neither (i) nominated by the board of directors of Allied,
nor (ii) appointed by directors so nominated; (c) any change in control (or
similar event, however denominated) with respect to Allied shall occur under and
as defined in any indenture or agreement in respect of Indebtedness in an
aggregate principal amount in excess of $10,000,000 (so long as the aggregate
amount of individual items of Indebtedness less than $10,000,000 with respect to
which any change of
<PAGE> 17
11
control event has occurred does not exceed in the aggregate $25,000,000) to
which Allied, the Borrower or any Subsidiary is a party; or (d) Allied shall
cease to own and control, directly, beneficially and of record, 100% of the
outstanding capital stock of the Borrower or Allied Finance, free and clear of
all Liens (other than Liens under the Loan Documents).
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the "Charged Premises", the "Real Property", the
"Securities" and "Debts" as defined in the applicable Canadian Security
Documents.
"Collateral Agreement" shall mean the senior subordinated note
collateral agreement dated as of December 5, 1996, between the Borrower and the
Indenture Trustee.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment, AXELs Commitment and
Swingline Commitment.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Condemnation Event" shall mean an event pursuant to which Allied, the
Borrower or any of the Subsidiaries has the right to collect and receive
proceeds as a result of any action or proceeding for the taking of any property
of Allied, the Borrower or any Subsidiary, or any part thereof or interest
therein, for public or quasi-public use under the power of eminent domain, by
reason of any public improvement or condemnation proceeding, or in any other
manner.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated November 1996.
"Consolidated Current Assets" shall mean, at any date of determination,
all assets (other than cash and cash-equivalents) that would, in accordance with
GAAP, be classified on a consolidated balance sheet of Allied, the Borrower and
the Subsidiaries as current assets at such date of determination.
"Consolidated Current Liabilities" shall mean, at any date of
determination, all liabilities (other than, without duplication (x) the current
portion of long-term Indebtedness and (y) outstanding Swingline Loans and
Revolving Loans) that would, in accordance with GAAP, be classified on a
consolidated balance sheet of Allied, the Borrower and the Subsidiaries as
current liabilities at such date of determination.
"Consolidated EBITDA" of any person for any period shall mean
Consolidated Net Income of such person for such period, plus, without
duplication and to the extent deducted from revenues in determining such
Consolidated Net Income, the sum of (a) the aggregate amount of Consolidated
Interest Expense for such period, (b) the aggregate amount of letter of credit
fees paid during such period, (c) the aggregate amount of income tax expense for
such period, (d) all amounts attributable to depreciation and amortization for
such period, (e) all non-cash non-
<PAGE> 18
12
recurring charges during such period, including charges for pooling costs
related to acquisitions accounted for under the pooling-of-interests method for
business combinations (it being understood that non-cash non-recurring charges
shall not include accruals for closure and post-closure liabilities and that
charges shall be deemed non-cash charges until the period that cash
disbursements attributable to such charges are made, at which point such charges
shall be deemed cash charges), (f) all cash charges attributable to the
Transactions, the Debt Tender Offer or the Fleet Refinancing during such period,
and minus, without duplication and to the extent added to revenues in
determining Consolidated Net Income for such period, all non-cash non-recurring
gains during such period, all as determined on a consolidated basis with respect
to Allied, the Borrower and the Subsidiaries in accordance with GAAP.
"Consolidated Interest Expense" of any person for any period shall mean
the gross interest expense, whether expensed or capitalized (including the
interest component in respect of Capital Lease Obligations) accrued or paid by
such person and its consolidated subsidiaries during such period, minus (a) any
interest income of such person and its consolidated subsidiaries, in each case,
as determined on a consolidated basis in accordance with GAAP and (b) non-cash
interest payments on the Laidlaw Debentures.
"Consolidated Net Income" of any person for any period shall mean the
net income or loss of such person and its consolidated subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital" shall mean, at any date of
determination, Consolidated Current Assets at such date of determination minus
Consolidated Current Liabilities at such date of determination.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Debt Tender Offer" shall mean the tender offer and consent
solicitation completed by Allied on July 30, 1996, pursuant to which
substantially all of Allied's 12% Senior Subordinated Notes due 2004 were
purchased by Allied.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Designated Preferred Stock" shall mean the 9% Cumulative Convertible
Preferred Stock of Allied and the 7% Cumulative Convertible Preferred Stock of
Allied in existence on the Closing Date.
"dollars" or "$" shall mean lawful money of the United States of
America.
<PAGE> 19
13
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata or as otherwise defined in any Environmental Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the threat, the
existence, or the continuation of the existence, of a Release (including sudden
or non-sudden, accidental or non-accidental Releases), (b) exposure to any
Hazardous Material, (c) the presence, use, handling, transportation, storage,
treatment or disposal of any Hazardous Material or (d) the violation or alleged
violation of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. Sections 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. Sections 6901 et seq., the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Sections 1251 et seq., the Clean Air Act of 1970, as
amended 42 U.S.C. Sections 7401 et seq., the Toxic Substances Control Act
of 1976, 15 U.S.C. Sections 2601 et seq., the Occupational Safety and
Health Act of 1970, as amended, 29 U.S.C. Sections 651 et seq., the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
Sections 11001 et seq., the Safe Drinking Water Act of 1974, as amended,
42 U.S.C. Sections 300(f) et seq., the Hazardous Materials Transportation
Act, 49 U.S.C. Sections 5101 et seq., and any similar or implementing
state or local law and any applicable federal, provincial or municipal laws of
Canada, and all amendments or regulations promulgated under any of the
foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Issuance" shall mean any issuance or sale by Allied, the
Borrower or any of their respective subsidiaries of any shares of capital stock
or other equity securities of Allied, the Borrower or any such subsidiary or any
obligations convertible into or exchangeable for, or giving any person a right,
option or warrant to acquire such securities or such convertible or exchangeable
obligations, except in each case for (a) any issuance or sale to Allied, the
Borrower
<PAGE> 20
14
or any wholly owned Subsidiary, (b) any issuance of directors' qualifying
shares, and (c) sales or issuances of common stock (i) to management or key
employees of Allied under any employee stock option or stock purchase plan in
existence from time to time or (ii) pursuant to other employee benefit plans in
existence from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA; (c) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (d) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (e) the incurrence of any liability under
Title IV of ERISA with respect to the termination of any Plan or the withdrawal
or partial withdrawal of the Borrower or any of its ERISA Affiliates from any
Plan or Multiemployer Plan; (f) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (g) the receipt by the Borrower or any ERISA Affiliate of any notice
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; (h) the occurrence of a "prohibited
transaction" with respect to which the Borrower or any of its Subsidiaries is a
"disqualified person" (within the meaning of Section 4975 of the Code) or with
respect to which the Borrower or any such Subsidiary could otherwise be liable;
and (i) any other event or condition with respect to a Plan or Multiemployer
Plan that could reasonably be expected to result in liability of the Borrower,
including with respect to matters governed by the federal, provincial or
municipal laws of Canada.
"Eurodollar AXELs Borrowing" shall mean a Borrowing comprised of
Eurodollar AXELs Loans.
"Eurodollar AXELs Loans" shall mean any AXELs Loan bearing interest at
a rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan, Eurodollar
AXELs Loan or Eurodollar Term Loan.
<PAGE> 21
15
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Borrowing" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year, the excess of (a)
the sum, without duplication, of (i) Allied's Consolidated EBITDA, (ii) the net
cash proceeds received by Allied, the Borrower and its consolidated Subsidiaries
in connection with the issuance of debt or equity securities, the sale or other
disposition of assets or condemnation, casualty or other extraordinary events to
the extent not included in Allied's Consolidated EBITDA and to the extent used
for mandatory prepayments of the principal of the Loans in accordance with
Section 2.13 and (iii) an amount equal to any decrease in Consolidated Working
Capital during such fiscal year over (b) the sum, without duplication, of (i)
taxes paid or payable in cash by Allied, the Borrower and the Subsidiaries on a
consolidated basis during such fiscal year, (ii) Consolidated Interest Expense
paid in cash by Allied during such fiscal year, (iii) Capital Expenditures made
in cash and in accordance with Section 6.11 during such fiscal year, (iv)
expenditures made in cash for Permitted Acquisitions during such fiscal year to
the extent not made from the proceeds of an Acquisition Loan or other
Indebtedness, (v) scheduled and, in the case of purchase money Indebtedness
only, mandatory principal repayments of Indebtedness made by Allied, the
Borrower and the Subsidiaries during such fiscal year, (vi) optional and
mandatory prepayments of the principal of Loans during such period, but only to
the extent that such prepayments cannot by their terms be reborrowed or redrawn
and do not occur in connection with a refinancing of all or any portion of such
Loans, (vii) an amount equal to any increase in Consolidated Working Capital
during such fiscal year, (viii) dividends or other distributions made by Allied
in cash that are permitted by Section 6.07, (ix) to the extent not taken into
account in determining Consolidated EBITDA, waste disposal based royalty
payments made in cash during such fiscal year by Allied, the Borrower and the
Subsidiaries, (x) an amount equal to any increase in deferred acquisition costs
and closure and post-closure obligations during such fiscal year and (xi)
extraordinary cash expenses paid, if any, by Allied, the Borrower and the
Subsidiaries and not included in Allied's Consolidated EBITDA.
"Existing Credit Agreement" shall mean the Credit Agreement dated as of
July 30, 1996, among Allied, the existing account parties party thereto, the
several banks and financial institutions party thereto and Credit Suisse, as
swingline lender, issuing bank, administrative agent and collateral agent.
"Existing Letter of Credit" shall mean each Letter of Credit previously
issued for the account of Allied or a Domestic Subsidiary that (a) is
outstanding on the Closing Date and (b) is listed on Schedule 1.01(b).
<PAGE> 22
16
"Extraordinary Amount" shall mean any cash received by or paid to or
for the account of Allied, the Borrower or the Subsidiaries consisting of tax
refunds, pension plan reversions, proceeds of insurance, including as a result
of a Casualty Event, condemnation awards, including as a result of a
Condemnation Event (and payments in lieu thereof), indemnity payments and
payments in respect of judgments (including punitive damages); provided,
however, that an Extraordinary Amount shall not include (a) cash receipts
received from proceeds of insurance, condemnation awards (or payments in lieu
thereof), indemnity payments or payments in respect of judgments or settlements
to the extent that such proceeds, awards or payments in respect of loss or
damage to equipment, fixed assets or real property are applied to replace or
repair such equipment, fixed assets or real property or to acquire other assets
in the business of the Borrower and any of its subsidiaries to the extent such
replacement, repair or acquisition is not prohibited under the terms of the Loan
Documents, so long as such application is commenced within 180 days after the
later of the occurrence of such loss or damage and the receipt of such proceeds,
awards or payments in respect thereof, (b) cash receipts received in the
ordinary course of business or (c) cash receipts received as a result of a tax
refund relating to a tax period prior to the Acquisition that are refunded to
Laidlaw pursuant to the terms of the Stock Purchase Agreement.
"Fee Letters" shall mean (a) the Fee Letter dated September 17, 1996,
among Allied, the Syndication Agent, the Documentation Agent, Citicorp
Securities, Inc., Citicorp USA Inc. and the Administrative Agent and (b) the Fee
Letter dated September 17, 1996, among Allied, the Syndication Agent, the
Documentation Agent, Citicorp Securities, Inc. and Citicorp USA Inc..
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees,
the LC Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Fixed Charge Coverage Ratio" shall mean, as of the last day of any
fiscal quarter, the ratio of (a) the sum of (i) Allied's Consolidated EBITDA for
the period of four consecutive fiscal quarters ending on such day and (ii) Lease
Expense for such period to (b) the sum of (i) Allied's Consolidated Interest
Expense for such period, (ii) the aggregate amount of cash taxes paid by Allied,
the Borrower and the Subsidiaries, on a consolidated basis, during such period,
(iii) Lease Expense for such period, (iv) cash dividends on capital stock
declared by Allied, the Borrower or any Subsidiary during such period (other
than any such dividend payable to Allied, the Borrower or any wholly owned
Subsidiary) and (v) principal amounts that became payable (whether or not paid
and whether at the stated maturity, by acceleration or by reason of optional
prepayment or redemption or otherwise) by Allied, the Borrower or any Subsidiary
in respect of Indebtedness of Allied, the Borrower or the Subsidiaries (other
than (x) Indebtedness refinanced with Refinancing Indebtedness or with any Loans
or (y) principal or interest payments that are paid with the common stock of
Allied) during such period.
"Fleet Refinancing" shall mean the repayment, completed on July 30,
1996, of all loans outstanding, interest thereon and other amounts due and
payable under (a) the Credit Agreement dated as of March 30, 1995, as amended,
among Allied, the Subsidiaries named therein, the
<PAGE> 23
17
several banks and financial institutions from time to time party thereto and
Fleet Bank, N.A. (as successor in interest to NatWest Bank N.A.), as agent, and
(b) the Line of Credit Agreement dated as of July 11, 1996, between Allied and
Fleet Bank, N.A.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, provincial,
municipal, local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
"Guarantee Agreements" shall mean the Allied Finance Guarantee
Agreement, the Allied Guarantee Agreement, the Canadian Subsidiary Guarantee
Agreement (Quebec) and the Subsidiary Guarantee Agreement.
"Guarantors" shall mean Allied, Allied Finance and the Subsidiary
Guarantors.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes; hazardous or toxic substances or wastes; pollutants; and
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature to the extent regulated
pursuant to any Environmental Law.
"Hypothec" shall mean any Hypothec substantially in the form of Exhibit
H-7 given by any Canadian Subsidiaries party to any such Hypothec for the
benefit of the Secured Parties.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money, (b) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (d) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business and waste disposal based royalties),
(e) all Indebtedness of others secured by (or for
<PAGE> 24
18
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (f)
all Guarantees by such person of Indebtedness of others, (g) all Capital Lease
Obligations of such person, (h) all obligations of such person in respect of
interest rate protection agreements, foreign currency exchange agreements or
other interest or exchange rate hedging arrangements and (i) all obligations of
such person as an account party in respect of letters of credit and bankers'
acceptances. The Indebtedness of any person shall include the Indebtedness of
any partnership in which such person is a general partner.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit I, among the Borrower, the Subsidiary Guarantors and the Collateral
Agent.
"Indenture Trustee" shall mean First Bank National Association, as
trustee under the Indenture dated as of December 1, 1996, governing the Senior
Subordinated Notes.
"Interest Expense Coverage Ratio" shall mean, as of the last day of any
fiscal quarter, the ratio of (a) Allied's Consolidated EBITDA for the period of
four consecutive fiscal quarters ended on such day to (b) Allied's Consolidated
Interest Expense for such period; provided, however, that (i) for the fiscal
quarter ended March 31, 1997, "Interest Expense Coverage Ratio" shall mean, as
of the last day of such fiscal quarter, the ratio of (x) Allied's Consolidated
EBITDA for the fiscal quarter ending on such date, to (y) Allied's Consolidated
Interest Expense for the fiscal quarter ending on such date; (ii) for the fiscal
quarter ended June 30, 1997, "Interest Expense Coverage Ratio" shall mean, as of
the last day of such fiscal quarter, the ratio of (x) Allied's Consolidated
EBITDA for the two fiscal quarter period ending on such date to (y) Allied's
Consolidated Interest Expense for the two fiscal quarter period ending on such
date; and (iii) for the fiscal quarter ended September 30, 1997, "Interest
Expense Coverage Ratio" shall mean, as of the last day of such fiscal quarter,
the ratio of (x) Allied's Consolidated EBITDA for the three fiscal quarter
period ending on such date to (y) Allied's Consolidated Interest Expense for the
three fiscal quarter period ending on such date.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and, in addition, the date of any prepayment of such
Borrowing or conversion of such Borrowing to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect and (b) as to any Base Rate Borrowing, the period commencing
on the date of such Borrowing and ending on the earliest of (i) the last
Business Day of the next succeeding March, June, September or December, (ii) the
Revolving Credit Maturity Date, the Term Loan Maturity Date, the AXELs Series A
Maturity Date, the AXELs Series B Maturity Date or the AXELs Series C Maturity
Date, as applicable, and (iii) the
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19
date such Borrowing is converted to a Borrowing of a different Type in
accordance with Section 2.10 or repaid or prepaid in accordance with Section
2.11, 2.12 or 2.13; provided, however, that if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of a Eurodollar Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap,
cap or other agreement satisfactory to the Administrative Agent, the Syndication
Agent and the Documentation Agent entered into by the Borrower with a
counterparty that, as of the date of such swap, cap or other agreement, is a
Lender (or an affiliate of a Lender) and is designed to protect the Borrower
against fluctuations in interest rates and not for speculation.
"Issuing Bank" shall mean, as the context may require, (a) (i) Credit
Suisse, with respect to Letters of Credit issued by Credit Suisse pursuant to
this Agreement, and (ii) with respect to each Existing Letter of Credit, the
issuer thereof, or (b) collectively, all the foregoing.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"Junior Exchange Indebtedness" shall mean Indebtedness of Allied, the
Borrower or any Subsidiary incurred after the Closing Date in exchange for
Designated Preferred Stock and that (i) requires no payment of principal prior
to a date that is at least one year after the AXELs Series C Maturity Date, (ii)
provides for interest payments not to exceed the existing dividends on the
Designated Preferred Stock exchanged therefor and (iii) contains subordination
language and intercreditor provisions no more favorable to the holders thereof
than the provisions attached hereto as Exhibit O. Notwithstanding the foregoing,
without the consent of the Required Lenders, the terms of any Junior Exchange
Indebtedness shall prohibit the holders of such Indebtedness from (A) increasing
the interest payments thereof or causing the same to occur more frequently, (B)
accelerating or amending the scheduled maturity to a date earlier than scheduled
at the time of the incurrence of such Indebtedness or (C) otherwise exercising
any remedy upon any default under such Indebtedness.
"Laidlaw Acquired Indebtedness" shall mean Indebtedness of the Laidlaw
Subsidiaries and set forth on Schedule 1.01(c).
"Laidlaw Debentures" shall mean the Laidlaw Junior Debenture and the
Laidlaw Zero Debenture.
"Laidlaw Junior Debenture" shall mean the 7% Junior Subordinated
Debenture due 2008 of Allied Finance issued to Laidlaw on the Closing Date in an
aggregate principal amount of $150,000,000 in exchange for the Allied Canada
Junior Debenture.
"Laidlaw Warrant" shall mean the warrant to purchase an aggregate
20,400,000 shares of common stock of Allied issued to Laidlaw on the Closing
Date, which shall be exercisable on
<PAGE> 26
20
or prior to the twelfth anniversary of the Closing Date at an exercise price of
$8.25 (subject to adjustment in accordance with the terms of the Laidlaw
Warrant).
"Laidlaw Zero Debenture" shall mean the Zero Coupon Junior Subordinated
Debenture due 2008 of Allied Finance issued to Laidlaw on the Closing Date in an
aggregate principal amount of $168,300,000 in exchange for the Allied Canada
Zero Debenture.
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.23.
"L/C Disbursement" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at any
time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lease Expense" shall mean, for any period, the aggregate amount of
fixed and contingent rentals payable by Allied, the Borrower and the
Subsidiaries, on a consolidated basis, for such period with respect to operating
leases of real and personal property.
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance. Unless the context clearly indicates otherwise, the term "Lenders"
shall include the Swingline Lender.
"Letter of Credit" shall mean, unless the context otherwise requires,
(a) any letter of credit issued pursuant to Section 2.23 (including the Back-up
Letters of Credit) and (b) any Existing Letter of Credit.
"Leverage Ratio" shall mean, as of the last day of any fiscal quarter,
the ratio of (a) Total Debt as of such date to (b) Allied's Consolidated EBITDA
for the period of four consecutive fiscal quarters ended on such date. For
purposes of this definition, Allied's Consolidated EBITDA for each of the four
fiscal quarter periods ending March 31, 1997, June 30, 1997, and September 30,
1997, shall be deemed to equal Allied's Consolidated EBITDA for the period
commencing on January 1, 1997, and ending on (i) March 31, 1997, multiplied by
4, (ii) June 30, 1997, multiplied by 2 and (iii) September 30, 1997, multiplied
by 4/3, as applicable.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate per annum determined by the Administrative Agent
at approximately 11:00 a.m. (London time) on the applicable interest rate date
of determination by reference to the British
<PAGE> 27
21
Bankers' Association Interest Settlement Rates for deposits in Dollars (as set
forth by any service selected by the Administrative Agent that has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying such rates) for a period equal to the
relevant Interest Period (rounded upward to the nearest whole multiple of
one-sixteenth of one percent (0.0625%)); provided that to the extent that an
interest rate is not ascertainable pursuant to the foregoing provisions of this
definition, the "LIBO Rate" shall be the interest rate per annum determined by
the Administrative Agent to be the average (rounded upward to the nearest whole
multiple of one-sixteenth of one percent (0.0625%) per annum, if such average is
not a multiple) of the rates per annum at which deposits in dollars are offered
to major banks in the London interbank market in London, England by the
Reference Banks at approximately 11:00 a.m. (London time) on the applicable
interest rate date of determination for such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge (fixed or floating) or security
interest in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit (and
any related Letter of Credit application or reimbursement agreement), the
Guarantee Agreements, the Security Documents and the Indemnity, Subrogation and
Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans, the AXELs Loans
and the Swingline Loans.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, operations, prospects or condition, financial or
otherwise, of Allied, the Borrower and the Subsidiaries, taken as a whole, (b)
material impairment of the ability of the Borrower to perform its obligations
under the Loan Documents to which it is or will be a party or (c) material
impairment of the rights of or benefits available to the Lenders under the Loan
Documents.
"Material Agreements" shall have the meaning assigned to such term in
Section 5.13.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
cash proceeds thereof (including cash and cash equivalents and cash payments
received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise, but only as and when received), net of (i)
costs of sale (including payment of the outstanding principal amount of, premium
or penalty, if any, interest and other amounts on any Indebtedness (other than
<PAGE> 28
22
Loans) secured by a Lien permitted pursuant to Section 6.02 on such assets and
required to be repaid under the terms thereof as a result of such Asset Sale),
(ii) taxes paid or payable in the year such Asset Sale occurs or in the
following year as a result thereof and (iii) amounts provided as a reserve, in
accordance with GAAP, against any liabilities under any indemnification
obligations associated with such Asset Sale (except that, to the extent and at
the time any such amounts are released from such reserve, such amounts shall
constitute Net Cash Proceeds); provided, however, that, with respect to any
Asset Sale, the proceeds of which are equal to or less than $25,000,000 (or if
the Leverage Ratio as of the last fiscal quarter for which financial statements
have been delivered to the Administrative Agent preceding such Asset Sale is
less than 4.00 to 1.00, $50,000,000), if the Borrower shall deliver a
certificate of a Financial Officer to the Administrative Agent at the time of
any Asset Sale setting forth the Borrower's intent to use the proceeds of such
Asset Sale to replace or repair the assets that are the subject of such Asset
Sale within 180 days of receipt of such proceeds and no Default shall have
occurred and shall be continuing at the time of such certificate or at the
proposed time of the application of such proceeds, such proceeds shall not
constitute Net Cash Proceeds except to the extent not so used within such
180-day period, at which time such proceeds shall be deemed Net Cash Proceeds,
and (b) with respect to any Equity Issuance or any issuance or other disposition
of Indebtedness for borrowed money, the cash proceeds thereof net of (i)
underwriting commissions or placement fees and expenses directly incurred in
connection therewith and (ii) the outstanding principal amount of, premium or
penalty, if any, interest and other amounts paid on Indebtedness refinanced with
the proceeds of such Equity Issuance or such Indebtedness, provided such
Indebtedness, by its terms, cannot be reborrowed.
"Obligation Currency" shall have the meaning assigned to such term in
Section 9.16.
"Obligations" shall mean all obligations defined as "Obligations" in
the Guarantee Agreements and the Security Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Perfection Schedule" shall mean the Perfection Schedule substantially
in the form of Annex 1 to the Security Agreement.
"Permitted Acquisition" shall have the meaning assigned to such term in
Section 6.05(j).
"Permitted Capital Expenditures" shall mean Capital Expenditures not in
excess of:
(a) for the fiscal year ending December 31, 1997, $134,000,000
(the "1997 Base Amount");
(b) for the fiscal year ending December 31, 1998, $149,000,000
(the "1998 Base Amount");
(c) for the fiscal year ending December 31, 1999, $164,000,000
(the "1999 Base Amount");
<PAGE> 29
23
(d) for the fiscal year ending December 31, 2000, the sum of
(i) $174,000,000 (the "2000 Base Amount"), plus (ii) 25% of Acquired
Revenues for the fiscal year ending December 31, 2000, with respect to
Acquired Businesses acquired during such fiscal year;
(e) for the fiscal year ending December 31, 2001, the sum of
(i) $184,000,000 (the "2001 Base Amount"), plus (ii) 25% of Acquired
Revenues for the fiscal year ending December 31, 2001, with respect to
Acquired Businesses acquired during such fiscal year, plus (iii) 15% of
Acquired Revenues for the fiscal year ending December 31, 2000, with
respect to Acquired Businesses acquired during such fiscal year;
(f) for the fiscal year ending December 31, 2002, the sum of
(i) $189,000,000 (the "2002 Base Amount"), plus (ii) 25% of Acquired
Revenues for the fiscal year ending December 31, 2002, with respect to
Acquired Businesses acquired during such fiscal year, plus (iii) 15% of
Acquired Revenues for the two fiscal year period ending December 31,
2001, with respect to Acquired Businesses acquired during such period;
(g) for the fiscal year ending December 31, 2003, the sum of
(i) $189,000,000 (the "2003 Base Amount"), plus (ii) 25% of Acquired
Revenues for the fiscal year ending December 31, 2003, with respect to
Acquired Businesses acquired during such fiscal year, plus (iii) 15% of
Acquired Revenues for the three fiscal year period ending December 31,
2002, with respect to Acquired Businesses acquired during such period;
(h) for the fiscal year ending December 31, 2004, the sum of
(i) $189,000,000 (the "2004 Base Amount"), plus (ii) 25% of Acquired
Revenues for the fiscal year ending December 31, 2004, with respect to
Acquired Businesses acquired during such fiscal year, plus (iii) 15% of
Acquired Revenues for the four fiscal year period ending December 31,
2003, with respect to Acquired Businesses acquired during such period;
and
(i) for the fiscal year ending December 31, 2005, the sum of
(i) $189,000,000 (the "2005 Base Amount"), plus (ii) 25% of Acquired
Revenues for the fiscal year ending December 31, 2005, with respect to
Acquired Businesses acquired during such fiscal year, plus (iii) 15% of
Acquired Revenues for the five fiscal year period ending December 31,
2004, with respect to Acquired Businesses acquired during such period.
The 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004 and 2005 Base Amounts
referred to above shall be referred to herein collectively as the "Base
Amounts".
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
<PAGE> 30
24
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard &
Poor's Ratings Service or from Moody's Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances, time deposits and demand deposits maturing within one year
from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof that has a combined
capital and surplus and undivided profits of not less than
$500,000,000;
(d) demand deposits made in the ordinary course of business
and consistent with the Borrower's customary cash management policy in
any domestic office of any commercial bank organized under the laws of
the United States of America or any State thereof;
(e) insured deposits issued by commercial banks of the type
described in clause (d) above;
(f) repurchase obligations with a term of not more than 90
days for, and secured by, underlying securities of the types described
in clauses (a) through (c) above entered into with a bank meeting the
qualifications described in clause (c) above.
(g) mutual funds whose investment guidelines restrict such
funds' investments primarily to those satisfying the provisions of
clauses (a) through (c) above; and
(h) other investment instruments approved in writing by the
Administrative Agent and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$500,000,000.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company (including limited liability company),
partnership or government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
the form of Exhibit J, between the Borrower, Allied, the Subsidiaries party
thereto and the Collateral Agent for the benefit of the Secured Parties.
"Pledge Intercreditor Agreement" shall mean the Pledge Intercreditor
Agreement, substantially in the form of Exhibit K, between the Collateral Agent
and the Indenture Trustee.
<PAGE> 31
25
"Preferred Stock" shall have the meaning assigned to such term in
Section 4.02(p).
"Prepayment Premium Date" shall mean the date that is one year and six
months after the Closing Date.
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment.
"Properties" shall have the meaning assigned to such term in Section
3.17.
"Reference Banks" shall mean Credit Suisse, Citibank, N.A. and The
First National Bank of Boston.
"Refinancing Indebtedness" shall have the meaning assigned to such term
in Section 6.01(o).
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken to: (i)
cleanup, remove, treat, abate or in any other way address any Hazardous Material
in the environment; (ii) prevent the Release or threat of Release, or minimize
the further Release of any Hazardous Material so it does not migrate or endanger
or threaten to endanger public health, welfare or the environment; or (iii)
perform studies and investigations in connection with, or as a precondition to,
(i) or (ii) above.
"Required Lenders" shall mean, at any time, (a) Lenders having
Revolving Loans, Term Loans (or, prior to the Closing Date, Term Loan
Commitments), L/C Exposure, Swingline Exposure and unused Revolving Credit
Commitments representing at least a majority of the sum of all Revolving Loans
outstanding, Term Loans (or, prior to the Closing Date, Term Loan
<PAGE> 32
26
Commitments) outstanding, L/C Exposure, Swingline Exposure and unused Revolving
Credit Commitments at such time and (b) Lenders having AXELs Loans (or, if prior
to the Closing Date, AXELs Commitments) representing at least a majority of the
sum of all AXELs Loans (or, if prior to the Closing Date, AXELs Commitments) at
such time.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09, 2.11(a)(v), 2.12 or 2.13 and
(b) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's L/C Exposure, plus the aggregate amount at such time of such Lender's
Swingline Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment.
"Revolving Credit Maturity Date" shall mean the date that is five years
and six months after the Closing Date.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to clause (e) of Section 2.01 and shall include any
Acquisition Loans (whether outstanding prior to, or after, the Acquisition Loan
Termination Date). Each Revolving Loan shall be a Eurodollar Revolving Loan or a
Base Rate Revolving Loan. No Revolving Loan shall be used for any Permitted
Acquisition unless such Revolving Loan is an Acquisition Loan.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, substantially
in the form of Exhibit L, between the Borrower, the Subsidiaries party thereto
and the Collateral Agent for the benefit of the Secured Parties.
"Security Documents" shall mean the U.S. Security Documents and the
Canadian Security Documents.
"Senior Convertible Debentures" shall mean the 8-1/2% Senior
Convertible Subordinated Debentures due 2002 of Allied.
<PAGE> 33
27
"Senior Debt" shall mean Total Debt but excluding (a) the Senior
Subordinated Notes and (b) the Senior Convertible Debentures.
"Senior Debt Ratio" shall mean, as of the last day of any fiscal
quarter, the ratio of (a) Senior Debt as of such date to (b) Allied's
Consolidated EBITDA for the period of four consecutive fiscal quarters ended on
such date, all determined on a consolidated basis in accordance with GAAP. For
purposes of this definition, Allied's Consolidated EBITDA for each of the four
fiscal quarter periods ending March 31, 1997, June 30, 1997, and September 30,
1997, shall be deemed to equal Allied's Consolidated EBITDA for the period
commencing on January 1, 1997, and ending on (i) March 31, 1997, multiplied by
4, (ii) June 30, 1997, multiplied by 2 and (iii) September 30, 1997, multiplied
by 4/3, as applicable.
"Senior Subordinated Notes" shall mean the 10-1/4% Senior Subordinated
Notes due 2006 issued by the Borrower on December 5, 1996, in an aggregate
principal amount of $525,000,000.
"Specialized Waste" shall mean Specialized Waste Systems, Inc., a Texas
corporation.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the applicable reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board and any other banking authority, domestic or
foreign, to which the Administrative Agent (including any branch, Affiliate, or
other fronting office making or holding a Loan) is subject (a) with respect to
the Base CD Rate, for new negotiable nonpersonal time deposits in dollars of
over $100,000 with maturities approximately equal to three months, and (b) with
respect to the Adjusted LIBO Rate, for Eurocurrency Liabilities (as defined in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
Eurocurrency Liabilities and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D. Statutory Reserves
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more than 50%
of the general partnership interests are, at the time any determination is being
made, owned, controlled or held.
"Subsidiary" shall mean any subsidiary of Allied (other than the
Borrower, unless the context otherwise requires) and shall include the Laidlaw
Subsidiaries.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit M, made by the Subsidiary
Guarantors in favor of the Collateral Agent for the benefit of the Secured
Parties.
<PAGE> 34
28
"Subsidiary Guarantor" shall mean each Subsidiary listed on Schedule
1.01(d), and each other Subsidiary that becomes a party to the Subsidiary
Guarantee Agreement or the Canadian Subsidiary Guarantee Agreement (Quebec).
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.22, as the same may be reduced from
time to time pursuant to Section 2.09 .
"Swingline Exposure" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such time.
"Swingline Loan" shall mean any loan made by the Swingline Lender
pursuant to Section 2.22.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Loan Commitments" shall mean, with respect to each Lender, the
commitment of such Lender to make Term Loans hereunder as set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed
its Term Loan Commitment, as applicable, as the same may be (a) reduced from
time to time pursuant to Section 2.09 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04
"Term Loan Maturity Date" shall mean the date that is five years and
six months after the Closing Date.
"Term Loan Repayment Amounts" shall have the meaning assigned to such
term in Section 2.11(a)(i).
"Term Loan Repayment Date" shall have the meaning assigned to such term
in Section 2.11(a)(i).
"Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to clause (a) of Section 2.01. Each Term Loan shall be either
a Eurodollar Term Loan or a Base Rate Term Loan.
"Three-Month Secondary CD Rate" shall mean, for any day, the average of
the secondary market quotations for three-month certificates of deposit of major
money center banks in New York City received at approximately 10:00 a.m., New
York City time, for the three week period ending on such day (or, if such day
shall not be a Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate of deposit
dealers of recognized standing selected by it.
"Total Debt" shall mean, with respect to Allied, the Borrower and the
Subsidiaries on a consolidated basis at any time, all Indebtedness (other than
Junior Exchange Indebtedness, the Laidlaw Debentures and Indebtedness described
in clause (h) of the definition of the term
<PAGE> 35
29
"Indebtedness") of Allied, the Borrower and the Subsidiaries which at such time,
would be required to be reflected as a liability for borrowed money on a
consolidated balance sheet of Allied, the Borrower and the Subsidiaries prepared
in accordance with GAAP.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Base Rate.
"U.S. Security Documents" shall mean (a) the Security Agreement, the
Pledge Agreement, the Allied Finance Pledge Agreement and (b) each other the
security agreement, mortgage or other instrument or document executed and
delivered by Allied, the Borrower or a Domestic Subsidiary pursuant to any of
the foregoing or pursuant to Section 5.11.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that for purposes of determining compliance
with the covenants contained in Article VI, all accounting terms herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP as in effect on the date of this Agreement and applied on a
basis consistent with the application used in the financial statements referred
to in Section 3.05(a).
<PAGE> 36
30
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make Term Loans to the Borrower on the
Closing Date in an aggregate principal amount not to exceed its Term Loan
Commitment, (b) to make AXELs Series A Loans to the Borrower on the Closing Date
in an aggregate principal amount not to exceed its AXELs Series A Commitment,
(c) to make AXELs Series B Loan to the Borrower on the Closing Date in an
aggregate principal amount not to exceed its AXELs Series B Commitment, (d) to
make AXELs Series C Loans to the Borrower on the Closing Date in an aggregate
principal amount not to exceed its AXELs Series C Commitment, (e) to make
Revolving Loans to the Borrower, at any time and from time to time on or after
the date hereof, and until the earlier of the Revolving Credit Maturity Date (or
in the case of Acquisition Loans, the Acquisition Loan Termination Date) and the
termination of the Revolving Credit Commitment of such Lender in accordance with
the terms hereof, in an aggregate principal amount at any time outstanding that
will not result in (x) (i) such Lender's Revolving Credit Exposure exceeding
(ii) such Lender's Revolving Credit Commitment or (y) the aggregate principal
amount of all Acquisition Loans at any time outstanding exceeding $100,000,000.
Within the limits set forth in clause (e) of the preceding sentence and subject
to the terms, conditions and limitations set forth herein, the Borrower may
borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in
respect of Term Loans or AXELs Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan (other than Swingline Loans) shall
be made as part of a Borrowing consisting of Loans made by the Lenders ratably
in accordance with their respective Revolving Credit Commitments, Term Loan
Commitments, AXELs Series A Commitments, AXELs Series B Commitments or AXELs
Series C Commitments, as applicable; provided, however, that the failure of any
Lender to make any Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shall
be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). Except for Loans deemed made pursuant to Section
2.02(f), the Loans comprising any Borrowing shall be in an aggregate principal
amount that is (i) an integral multiple of $1,000,000 and not less than
$5,000,000 or (ii) equal to the remaining available balance of the applicable
Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of Base Rate Loans or Eurodollar Loans as the Borrower may
request pursuant to Section 2.03. Each Lender may at its option make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding at
the same time; provided, however, that the Borrower shall not be entitled to
request any Borrowing that, if made, would result in more than 20 Eurodollar
Borrowings outstanding hereunder at any time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowings.
<PAGE> 37
31
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 12:00 (noon),
New York City time, and the Administrative Agent shall by 1:00 p.m., New York
City time, credit the amounts so received to an account in the name of the
Borrower designated by the Borrower in the applicable Borrowing Request or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, for the first such day, the Federal Funds
Effective Rate, and for each day thereafter, the Base Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement, and the Borrower shall be relieved of its obligation pursuant to the
preceding sentence to repay such amount or, if such amount has theretofore been
repaid by the Borrower to the Administrative Agent, the Administrative Agent
shall make such corresponding amount available to the Borrower.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Revolving Credit Borrowing, Term Borrowing,
AXELs Series A Borrowing, AXELs Series B Borrowing or AXELs Series C Borrowing
if the Interest Period requested with respect thereto would end after the
Revolving Credit Maturity Date (or in the case of an Acquisition Borrowing, the
Acquisition Loan Repayment Date), the Term Loan Maturity Date, the AXELs Series
A Maturity Date, the AXELs Series B Maturity Date or the AXELs Series C Maturity
Date, respectively.
(f) If the Issuing Bank shall not have received from the Borrower or
Allied, as the case may be, the payment required to be made by Section 2.23(e)
within the time specified in such Section, the Issuing Bank will promptly notify
the Administrative Agent of the L/C Disbursement and the Administrative Agent
will promptly notify each Revolving Credit Lender of such L/C Disbursement and
its Pro Rata Percentage thereof. Each Revolving Credit Lender shall pay by wire
transfer of immediately available funds to the Administrative Agent not later
than 2:00 p.m., New York City time, on such date (or, if such Revolving Credit
Lender shall have received such notice later than 12:00 (noon), New York City
time, on any day, not later than 12:00 (noon), New York City time, on the
immediately following Business Day), an amount equal to such Lender's Pro Rata
Percentage of such L/C Disbursement (it being understood that such amount
<PAGE> 38
32
shall be deemed to constitute a Base Rate Revolving Loan of such Lender and such
payment shall be deemed to have reduced the L/C Exposure), and the
Administrative Agent will promptly pay to the Issuing Bank amounts so received
by it from the Revolving Credit Lenders. The Administrative Agent will promptly
pay to the Issuing Bank any amounts received by it from the Borrower pursuant to
Section 2.23(e) prior to the time that any Revolving Credit Lender makes any
payment pursuant to this paragraph (f); any such amounts received by the
Administrative Agent thereafter will be promptly remitted by the Administrative
Agent to the Revolving Credit Lenders that shall have made such payments and to
the Issuing Bank, as their interests may appear. If any Revolving Credit Lender
shall not have made its Pro Rata Percentage of such L/C Disbursement available
to the Administrative Agent as provided above, such Lender and the Borrower or
Allied, as the case may be, severally agree to pay interest on such amount, for
each day from and including the date such amount is required to be paid in
accordance with this paragraph to but excluding the date such amount is paid, to
the Administrative Agent for the account of the Issuing Bank at (i) in the case
of the Borrower or Allied, as the case may be, a rate per annum equal to the
interest rate applicable to Revolving Loans pursuant to Section 2.06(a), and
(ii) in the case of such Lender, for the first such day, the Federal Funds
Effective Rate, and for each day thereafter, the Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f),
as to which this Section 2.03 shall not apply), the Borrower shall hand deliver
or telecopy to the Administrative Agent a duly completed Borrowing Request (a)
in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before a proposed Borrowing, and (b) in the case of a
Base Rate Borrowing, not later than 12:00 noon, New York City time, one Business
Day before a proposed Borrowing. Each Borrowing Request shall be irrevocable,
shall be signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Term
Borrowing, an AXELs Series A Borrowing, an AXELs Series B Borrowing, an AXELs
Series C Borrowing or a Revolving Credit Borrowing (and, if a Revolving Credit
Borrowing, whether such Borrowing is an Acquisition Borrowing), and whether such
Borrowing is to be a Eurodollar Borrowing or a Base Rate Borrowing; (ii) the
date of such Borrowing (which shall be a Business Day), (iii) the number and
location of the account to which funds are to be disbursed (which shall be an
account that complies with the requirements of Section 2.02(c)); (iv) the amount
of such Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing,
the Interest Period with respect thereto; provided, however, that, (x)
notwithstanding any contrary specification in any Borrowing Request, each
requested Borrowing shall comply with the requirements set forth in Section 2.02
and (y) upon the request of the Syndication Agent, the Administrative Agent and
the Documentation Agent, during the period from and including the Closing Date
to but excluding a date not more than 60 days after the Closing Date, the
Borrower shall not be entitled to elect to make Eurodollar Borrowings. If no
election as to the Type of Borrowing is specified in any such notice, then the
requested Borrowing shall be a Base Rate Borrowing. If no Interest Period with
respect to any Eurodollar Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall promptly advise the applicable Lenders
of any notice given pursuant to this Section 2.03 (and the contents thereof),
and of each Lender's portion of the requested Borrowing.
<PAGE> 39
33
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (i) the then unpaid principal amount of each Swingline
Loan, on the last day of the Interest Period applicable to such Loan or, if
earlier, on the Revolving Credit Maturity Date, (ii) the principal amount of
each Term Loan, AXELs Loan and Acquisition Loan of such Lender as provided in
Section 2.11 and (iii) the then unpaid principal amount of each Revolving Loan
on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrower to repay
the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a promissory note payable to such Lender
and its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the Closing Date and on the last Business
Day of March, June, September and December in each year, commencing the last
Business Day of March 1997, and on each date on which any Commitment of such
Lender shall expire or be terminated as provided herein, a commitment fee (a
"Commitment Fee") equal to the Applicable Percentage per annum in effect from
time to time on the average daily unused amount of the Commitments of such
Lender (other than the Swingline Commitment) during the preceding quarter (or
other period commencing with the date of acceptance by the Borrower of the
Commitment of such Lender or ending with the Revolving Credit Maturity Date or
the date on which the Commitments of such Lender shall expire or be terminated).
All Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Commitment Fee due to each Lender shall
commence to accrue on the date such Lender's Commitment was allocated to such
Lender by the Syndication Agent, the Administrative Agent and the Documentation
Agent and shall cease to accrue on the date on which the Commitment of such
Lender shall expire or be terminated as provided herein. For purposes of
calculating Commitment Fees only, no portion
<PAGE> 40
34
of the Revolving Credit Commitments shall be deemed utilized under Section 2.17
as a result of outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in the Fee Letters at the times and
in the amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last Business Day of March, June,
September and December of each year, commencing the last Business Day of March
1997, and on the date on which the Revolving Credit Commitment of such Lender
shall be terminated as provided herein, a fee (an "L/C Participation Fee")
calculated on such Lender's Pro Rata Percentage of the average daily aggregate
L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C
Disbursements) during the quarter ending on such date (or shorter period
commencing with the date hereof or ending with the Revolving Credit Maturity
Date or the date on which all Letters of Credit have been canceled or have
expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate equal to the Applicable Percentage from time to time used
to determine the interest rate on Revolving Credit Borrowings comprised of
Eurodollar Loans pursuant to Section 2.06, and (ii) to the Issuing Bank with
respect to each Letter of Credit (x) a fronting fee equal to 1/4 of 1% per annum
of the outstanding face amount of such Letter of Credit, payable quarterly in
arrears and (y) the standard issuance and drawing fees specified from time to
time by the Issuing Bank (the "Issuing Bank Fees"). All L/C Participation Fees
and Issuing Bank Fees shall be computed on the basis of the actual number of
days elapsed in a year of 360 days.
All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each Base Rate Borrowing, including each
Swingline Loan, shall bear interest (computed on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case may be, when the
Base Rate is determined by reference to the Prime Rate and over a year of 360
days at all other times) at a rate per annum equal to (i) in the case of
Revolving Credit Borrowings and Term Borrowings, the Base Rate plus the
Applicable Percentage in effect from time to time, (ii) in the case of AXELs
Series A Borrowings, the Base Rate plus 1.75%, (iii) in the case of AXELs Series
B Borrowings, the Base Rate plus 2.00% and (iv) in the case of AXELs Series C
Borrowings, the Base Rate plus 2.25%.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to (i) in the case of Revolving Credit Borrowings and Term Borrowings, the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Percentage in effect from time to time, (ii) in the case of AXELs
Series A Borrowings, the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus 2.75%, (iii) in the case of AXELs Series B Borrowings,
the Adjusted LIBO Rate
<PAGE> 41
35
for the Interest Period in effect for such Borrowing plus 3.00% and (iv) in the
case of AXELs Series C Borrowings, the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus 3.25%.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Base Rate or Adjusted LIBO Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of overdue principal,
at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus
2.00% per annum and (b) in all other cases, a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) equal to the sum of the Base Rate plus the
Applicable Percentage applicable to Base Rate Loans plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or telecopy notice of such
determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for a Base Rate Borrowing.
Each determination by the Administrative Agent hereunder shall be conclusive
absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) Each
Lender's Term Loan Commitment and AXELs Commitment, as applicable, shall
terminate (i) at the time such Lender makes the Term Loans or AXELs Loans, as
applicable, to be made by it on the Closing Date in accordance with Section 2.01
or (ii) in the event any such Lender reasonably determines that the conditions
precedent set forth in Section 4.02 have not be satisfied on or prior to the
Closing Date, at 5:00 p.m., New York City time, on the Closing Date. The
Revolving Credit Commitments, the Swingline Commitment and the L/C Commitment
shall automatically terminate on the Revolving Credit Maturity Date.
Notwithstanding the foregoing, all the Commitments shall automatically terminate
at 5:00 p.m., New York City time, on February 28, 1997, if the initial Credit
Event shall not have occurred by such time.
<PAGE> 42
36
(b) Upon at least five Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Term Loan Commitments, the AXELs Commitments or the Revolving Credit
Commitments; provided, however, that (i) each partial reduction of the Term Loan
Commitments, the AXELs Commitments or the Revolving Credit Commitments shall be
in an integral multiple of $1,000,000 and in a minimum amount of $5,000,000 and
(ii) the Total Revolving Credit Commitment shall not be reduced to an amount
that is less than the Aggregate Revolving Credit Exposure at the time.
(c) Each reduction in the Term Loan Commitments, the AXELs Commitments
or the Revolving Credit Commitments hereunder shall be made ratably among the
Lenders in accordance with their respective applicable Commitments. The Borrower
shall pay to the Administrative Agent for the account of the applicable Lenders,
on the date of each termination or reduction, the Commitment Fees on the amount
of the Commitments so terminated or reduced accrued to but excluding the date of
such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into a
Base Rate Borrowing, (b) not later than 11:00 a.m., New York City time, three
Business Days prior to conversion or continuation, to convert any Base Rate
Borrowing into a Eurodollar Borrowing or to continue any Eurodollar Borrowing as
a Eurodollar Borrowing for an additional Interest Period, and (c) not later than
11:00 a.m., New York City time, three Business Days prior to conversion, to
convert the Interest Period with respect to any Eurodollar Borrowing to another
permissible Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing the
Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan
(or portion thereof) being converted shall be paid by the Borrower at
the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.16;
<PAGE> 43
37
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Borrowing into a Base
Rate Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing, any Eurodollar AXELs Borrowing or any Eurodollar Borrowing
comprised of Acquisition Loans that would end later than a Term Loan
Repayment Date, an AXELs Repayment Date or an Acquisition Loan
Repayment Date, respectively, occurring on or after the first day of
such Interest Period if, after giving effect to such selection, the
aggregate outstanding amount of (A) the Eurodollar Term Borrowings,
Eurodollar AXELs Borrowings or Eurodollar Borrowings comprised of
Acquisition Loans, as applicable, with Interest Periods ending on or
prior to such Term Loan Repayment Date, AXELs Repayment Date or
Acquisition Loan Repayment Date, respectively, and (B) the Base Rate
Term Borrowings, the Base Rate AXELs Borrowings and the Base Rate
Borrowings comprised of Acquisition Loans, as applicable, would not be
at least equal to the principal amount of Term Borrowings, AXELs
Borrowings or Acquisition Borrowings, as applicable, to be paid on such
Term Loan Repayment Date, such AXELs Repayment Date or such Acquisition
Loan Repayment Date, respectively;
(viii) after the occurrence and during the continuance of a
Default or Event of Default, no outstanding Loan may be converted into,
or continued as, a Eurodollar Loan; and
(ix) upon the request of the Syndication Agent, the
Administrative Agent and the Documentation Agent, during the period
from and including the Closing Date to but excluding a date not more
than 60 days after the Closing Date, no Borrowing may be converted into
a Eurodollar Borrowing.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or a
Base Rate Borrowing, (iii) if such notice requests a conversion, the date of
such conversion (which shall be a Business Day) and (iv) if such Borrowing is to
be converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to
<PAGE> 44
38
the terms hereof), automatically be continued into a new Interest Period as a
Base Rate Borrowing.
SECTION 2.11. Repayment of Term Borrowings and AXELs Borrowings. (a)
(i) The Borrower shall pay to the Administrative Agent, for the account of the
Lenders, on the dates set forth below, or if any such date is not a Business
Day, on the next succeeding Business Day (each such date being a "Term Loan
Repayment Date"), a principal amount of the Term Loans (such amount, as adjusted
from time to time pursuant to Sections 2.11(b), 2.12 and 2.13, being called the
"Term Loan Repayment Amount") equal to the amount set forth below for such date,
together in each case with accrued and unpaid interest on the principal amount
to be paid to but excluding the date of such payment:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
June 30, 1997 $10,000,000
September 30, 1997 10,000,000
December 31, 1997 10,000,000
March 31, 1998 13,750,000
June 30, 1998 13,750,000
September 30, 1998 13,750,000
December 31, 1998 13,750,000
March 31, 1999 18,750,000
June 30, 1999 18,750,000
September 30, 1999 18,750,000
December 31, 1999 18,750,000
March 31, 2000 22,500,000
June 30, 2000 22,500,000
September 30, 2000 22,500,000
December 31, 2000 22,500,000
March 31, 2001 25,000,000
June 30, 2001 25,000,000
September 30, 2001 25,000,000
December 31, 2001 25,000,000
March 31, 2002 62,500,000
Term Loan Maturity Date 62,500,000
</TABLE>
(ii) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on the dates set forth below or, if any such date is not
a Business Day, on the next succeeding Business Day (each such date being an
"AXELs Series A Repayment Date"), a principal amount of the AXELs Series A Loans
(such amount, as adjusted from time to time pursuant to Sections 2.11(b), 2.12
and 2.13, being called the "AXELs Series A Repayment
<PAGE> 45
39
Amount") equal to the amount set forth below for such date, together in each
case with accrued and unpaid interest on the principal amount to be paid to but
excluding the date of such payment:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
June 30, 1997 $333,334
September 30, 1997 333,333
December 31, 1997 333,333
March 31, 1998 250,000
June 30, 1998 250,000
September 30, 1998 250,000
December 31, 1998 250,000
March 31, 1999 250,000
June 30, 1999 250,000
September 30, 1999 250,000
December 31, 1999 250,000
March 31, 2000 250,000
June 30, 2000 250,000
September 30, 2000 250,000
December 31, 2000 250,000
March 31, 2001 250,000
June 30, 2001 250,000
September 30, 2001 250,000
December 31, 2001 250,000
March 31, 2002 11,250,000
June 30, 2002 11,250,000
September 30, 2002 11,250,000
December 31, 2002 11,250,000
March 31, 2003 25,000,000
AXELs Series A Maturity Date 25,000,000
</TABLE>
(iii) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on the dates set forth below or, if any such date is not
a Business Day, on the next succeeding Business Day (each such date being an
"AXELs Series B Repayment Date"), a principal amount of the AXELs Series B Loans
(such amount, as adjusted from time to time pursuant to Sections 2.11(b), 2.12
and 2.13, being called the "AXELs Series B Repayment
<PAGE> 46
40
Amount") equal to the amount set forth below for such date, together in each
case with accrued and unpaid interest on the principal amount to be paid to but
excluding the date of such payment:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
June 30, 1997 $666,667
September 30, 1997 666,667
December 31, 1997 666,666
March 31, 1998 500,000
June 30, 1998 500,000
September 30, 1998 500,000
December 31, 1998 500,000
March 31, 1999 500,000
June 30, 1999 500,000
September 30, 1999 500,000
December 31, 1999 500,000
March 31, 2000 500,000
June 30, 2000 500,000
September 30, 2000 500,000
December 31, 2000 500,000
March 31, 2001 500,000
June 30, 2001 500,000
September 30, 2001 500,000
December 31, 2001 500,000
March 31, 2002 500,000
June 30, 2002 500,000
September 30, 2002 500,000
December 31, 2002 500,000
March 31, 2003 22,000,000
June 30, 2003 22,000,000
September 30, 2003 22,000,000
December 31, 2003 22,000,000
March 31, 2004 50,000,000
AXELs Series B Maturity Date 50,000,000
</TABLE>
(iv) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on the dates set forth below or, if any such date is not
a Business Day, on the next succeeding Business Day (each such date being an
"AXELs Series C Repayment Date"), a principal amount of the AXELs Series C Loans
(such amount, as adjusted from time to time pursuant to Sections 2.11(b), 2.12
and 2.13, being called the "AXELs Series C Repayment
<PAGE> 47
41
Amount") equal to the amount set forth below for such date, together in each
case with accrued and unpaid interest on the principal amount to be paid to but
excluding the date of such payment:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
June 30, 1997 $666,667
September 30, 1997 666,667
December 31, 1997 666,666
March 31, 1998 500,000
June 30, 1998 500,000
September 30, 1998 500,000
December 31, 1998 500,000
March 31, 1999 500,000
June 30, 1999 500,000
September 30, 1999 500,000
December 31, 1999 500,000
March 31, 2000 500,000
June 30, 2000 500,000
September 30, 2000 500,000
December 31, 2000 500,000
March 31, 2001 500,000
June 30, 2001 500,000
September 30, 2001 500,000
December 31, 2001 500,000
March 31, 2002 500,000
June 30, 2002 500,000
September 30, 2002 500,000
December 31, 2002 500,000
March 31, 2003 500,000
June 30, 2003 500,000
September 30, 2003 500,000
December 31, 2003 500,000
March 31, 2004 21,500,000
June 30, 2004 21,500,000
September 30, 2004 21,500,000
December 31, 2004 21,500,000
March 31, 2005 50,000,000
AXELs Series C Maturity Date 50,000,000
</TABLE>
<PAGE> 48
42
(v) The Borrower shall pay to the Administrative Agent, for the account
of the Lenders, on the dates set forth below or, if any such date is not a
Business Day, on the next succeeding Business Day (each such date being an
"Acquisition Loan Repayment Date"), a principal amount of the Acquisition Loans
(such amount, as adjusted from time to time pursuant to Sections 2.11(b), 2.12
and 2.13, being called the "Acquisition Loan Repayment Amount") equal to the
percentage set forth below for such date of the principal amount of the
Acquisition Loans outstanding on the Acquisition Loan Termination Date, together
in each case with accrued and unpaid interest on the principal amount to be paid
to but excluding the date of such payment:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
September 30, 2000 12.5%
December 31, 2000 12.5%
March 31, 2001 12.5%
June 30, 2001 12.5%
September 30, 2001 12.5%
December 31, 2001 12.5%
March 31, 2002 12.5%
Revolving Credit Maturity Date 12.5%
</TABLE>
(b) In the event and on each occasion that any Term Loan Commitments or
AXELs Commitments shall be reduced or shall expire or terminate other than as a
result of the making of a Term Loan or an AXELs Loan, as applicable, the
installments payable on each Term Loan Repayment Date and AXELs Repayment Date,
as applicable, shall be reduced pro rata by an aggregate amount equal to the
amount of such reduction, expiration or termination.
(c) To the extent not previously paid, all Term Loans, AXELs Series A
Loans, AXELs Series B Loans, AXELs Series C Loans and Acquisition Loans shall be
due and payable on the Term Loan Maturity Date, AXELs Series A Maturity Date,
AXELs Series B Maturity Date, AXELs Series C Maturity Date and Revolving Credit
Maturity Date, respectively, together with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
(e) All repayments of Acquisition Loans pursuant to this Section 2.11
shall automatically reduce the Total Revolving Credit Commitment by the amount
of such repayment.
SECTION 2.12. Optional Prepayments. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, upon at least three Business Days' (in the case of prepayments of Loans
other than AXELs Loans) or five Business Days' (in the case of prepayments of
AXELs Loans) prior written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent before
11:00 a.m., New York City time; provided, however, that (i) each partial
prepayment and
<PAGE> 49
43
reduction shall be in an amount that is an integral multiple of $1,000,000 and
not less than $5,000,000 and (ii) that no Acquisition Loans may be prepaid
pursuant to this Section 2.12(a) if immediately after giving effect to such
prepayment and the prepayment of any other Revolving Loans made concurrently
therewith, any Revolving Loans (other than Acquisition Loans) would be
outstanding.
(b) Optional prepayments of Term Loans, AXELs Loans or Acquisition
Loans shall be allocated pro rata among the then-outstanding Term Loans, AXELs
Loans or Acquisition Loans and applied pro rata against the remaining scheduled
installments of principal due in respect of the Term Loans, AXELs Loans or
Acquisition Loans under Sections 2.11(a)(i), (ii), (iii), (iv) and (v),
respectively; provided that, on or prior to the Acquisition Loan Termination
Date, the amount of any such prepayment allocated to the outstanding Acquisition
Loans shall be applied to prepay the outstanding Acquisition Loans without
regard to the scheduled amortization thereof.
(c) Each notice of prepayment shall specify the prepayment date,
whether the Borrowing being prepaid is a Term Borrowing, an AXELs Series A
Borrowing, an AXELs Series B Borrowing, an AXELs Series C Borrowing, an
Acquisition Borrowing or a Revolving Credit Borrowing that is not an Acquisition
Borrowing and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing by the amount stated therein on the date stated therein. All
prepayments under this Section 2.12 shall be subject to Section 2.16, and
prepayment of AXELs Loans shall be subject to Section 2.12(e), but otherwise
without premium or penalty. All prepayments of Eurodollar Loans under this
Section 2.12 shall be accompanied by accrued interest on the principal amount
being prepaid to the date of payment.
(d) All prepayments of Acquisition Loans made on or after the
Acquisition Loan Termination Date pursuant to this Section 2.12 shall
automatically and permanently reduce the Total Revolving Credit Commitment by
the amount of such prepayment.
(e) In the event that the Borrower prepays any AXELs Loan pursuant to
this Section 2.12 on or prior to the Prepayment Premium Date, the Borrower shall
pay on the date such prepayment is made a premium of: (i) 2% of the aggregate
principal amount so prepaid for any such prepayment made on or prior to the
first anniversary of the Closing Date or (ii) 1% of the aggregate principal
amount so prepaid for any such prepayment made after the first anniversary of
the Closing Date but on or prior to the Prepayment Premium Date.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, the Borrower shall repay or
prepay all its outstanding Revolving Credit Borrowings (other than Acquisition
Borrowings) and all outstanding Swingline Loans on the date of such termination.
In the event of any partial reduction of the Revolving Credit Commitments, then
(i) at or prior to the effective date of such reduction, the Administrative
Agent shall notify the Borrower and the Revolving Credit Lenders of the
Aggregate Revolving Credit Exposure (other than Revolving Credit Exposure with
respect to Acquisition Loans) after giving effect thereto and (ii) if such
Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit
Commitment after giving effect to such reduction or termination, then the
Borrower shall, on the date of such reduction or termination, repay or prepay
Revolving Credit Borrowings (other than Acquisition Borrowings) or Swingline
Loans (or a combination thereof)
<PAGE> 50
44
in an amount sufficient to eliminate such excess. If following any reduction of
the Total Revolving Credit Commitment and the payments required by this Section
2.13(a), the Total Revolving Credit Commitment is less than the aggregate L/C
Exposure, the Borrower shall, on the date of such reduction, provide cash
collateral, in accordance with Section 2.23(j), in an amount equal to the amount
that the aggregate L/C Exposure exceeds the Total Revolving Credit Commitment.
(b) Not later than the third Business Day following the later of (i)
the completion of any Asset Sale and (ii) the receipt of the Net Cash Proceeds
with respect thereto, the Borrower shall apply 100% of the Net Cash Proceeds
received with respect thereto to prepay outstanding Term Loans, AXELs Loans and
Acquisition Loans in accordance with Section 2.13(g).
(c) Not later than the third Business Day following receipt of any
Extraordinary Amount, the Borrower shall apply 100% of such Extraordinary Amount
received to prepay outstanding Term Loans, AXELs Loans and Acquisition Loans in
accordance with Section 2.13(g).
(d) In the event and on each occasion that an Equity Issuance occurs,
the Borrower shall, substantially simultaneously with (and in any event not
later than the third Business Day next following) the occurrence of such Equity
Issuance, apply 75% of the Net Cash Proceeds therefrom to prepay outstanding
Term Loans, AXELs Loans and Acquisition Loans in accordance with Section
2.13(g); provided, however, that in the event that the Leverage Ratio as of the
last day of the fiscal quarter most recently ended preceding the date of such
Equity Issuance is less than 2.50 to 1.00, only 50% of such Net Cash Proceeds
shall be required to be so applied pursuant to this clause (d).
(e) No later than the earlier of (i) 100 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ending on December
31, 1997, and (ii) the day that is five Business Days after the date on which
the financial statements with respect to such period are delivered pursuant to
Section 5.04(a), the Borrower shall prepay outstanding Term Loans, AXELs Loans
and Acquisition Loans in accordance with Section 2.13(g) in an aggregate
principal amount equal to 75% of Excess Cash Flow for the fiscal year then
ended.
(f) In the event that Allied, the Borrower or any Subsidiary shall
receive Net Cash Proceeds from the issuance or other disposition of Indebtedness
for money borrowed (other than Indebtedness the issuance of which also
constitutes an Equity Issuance), of Allied, the Borrower or any Subsidiary
(other than Indebtedness for money borrowed permitted pursuant to Section 6.01),
the Borrower shall, substantially simultaneously with (and in any event not
later than the third Business Day next following) the receipt of such Net Cash
Proceeds by Allied, the Borrower or the Subsidiaries, apply an amount equal to
100% of such Net Cash Proceeds to prepay outstanding Term Loans, AXELs Loans and
Acquisition Loans in accordance with Section 2.13(g).
(g) Mandatory prepayments of outstanding Term Loans, AXELs Loans and
Acquisition Loans under this Agreement shall, subject to paragraph (k) below, be
allocated pro rata among the then-outstanding Term Loans, AXELs Loans and
Acquisition Loans, and, subject to paragraph (j) below, applied pro rata against
the remaining scheduled installments of principal
<PAGE> 51
45
due in respect of Term Loans, AXELs Loans and Acquisition Loans under Sections
2.11(a)(i), (ii), (iii), (iv) and (v),as the case may be.
(h) The Borrower shall deliver to the Administrative Agent, at the time
of each pre-payment required under this Section 2.13, (i) a certificate signed
by a Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments under this Section 2.13 shall be subject to Section
2.16, but shall otherwise be without premium or penalty.
(i) Amounts to be applied pursuant to this Section 2.13 to the
prepayment of Term Loans, AXELs Loans and Acquisition Loans shall be applied, as
applicable, first to reduce outstanding Base Rate Term Loans, Base Rate AXELs
Loans and Base Rate Acquisition Loans. Any amounts remaining after each such
application shall, at the option of the Borrower, be applied to prepay
Eurodollar Term Loans, Eurodollar AXELs Loans or Eurodollar Acquisition Loans,
as the case may be, immediately and/or shall be deposited in the Prepayment
Account (as defined below). The Administrative Agent shall apply any cash
deposited in the Prepayment Account (i) allocable to Term Loans to prepay
Eurodollar Term Loans, (ii) allocable to AXELs Loans to prepay Eurodollar AXELs
Loans and (iii) allocable to Acquisition Loans to prepay Eurodollar Acquisition
Loans, in each case on the last day of their respective Interest Periods (or, at
the direction of the Borrower, on any earlier date) until all outstanding Term
Loans, AXELs Loans or Acquisition Loans, as the case may be, have been prepaid
or until all the allocable cash on deposit with respect to such Loans has been
exhausted. For purposes of this Agreement, the term "Prepayment Account" shall
mean an account established by the Borrower with the Administrative Agent and
over which the Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal for application in accordance with
this paragraph (i). The Administrative Agent will, at the request of the
Borrower, invest amounts on deposit in the Prepayment Account in Permitted
Investments that mature prior to the last day of the applicable Interest Periods
of the Eurodollar Term Borrowings, Eurodollar AXELs Borrowings or Eurodollar
Acquisition Borrowings to be prepaid, as the case may be; provided, however,
that (i) the Administrative Agent shall not be required to make any investment
that, in its sole judgment, would require or cause the Administrative Agent to
be in, or would result in any, violation of any law, statute, rule or regulation
and (ii) the Administrative Agent shall have no obligation to invest amounts on
deposit in the Prepayment Account if a Default or Event of Default shall have
occurred and be continuing. The Borrower shall indemnify the Administrative
Agent for any losses relating to the investments so that the amount available to
prepay Eurodollar Borrowings on the last day of the applicable Interest Period
is not less than the amount that would have been available had no investments
been made pursuant thereto. Other than any interest earned on such investments,
the Prepayment Account shall not bear interest. Interest or profits, if any, on
such investments shall be deposited in the Prepayment Account and reinvested and
disbursed as specified above. If the maturity of the Loans has been accelerated
pursuant to Article VII, the Administrative Agent may, in its sole discretion,
apply all amounts on deposit in the Prepayment Account to satisfy any of the
Obligations. The Borrower hereby grants to the Administrative Agent, for its
benefit and the benefit of the Issuing Bank, the Swingline Lender and the
Lenders, a security interest in the Prepayment Account to secure the
Obligations.
<PAGE> 52
46
(j) Any AXELs Lender may elect, by notice to the Administrative Agent
in writing (or by telephone or telecopy promptly confirmed in writing) at least
one Business Day prior to any prepayment of AXELs Loans required to be made by
the Borrower for the account of such Lender pursuant to this Section 2.13, other
than mandatory prepayments required pursuant to Section 2.13(b), to cause all or
a portion of such prepayment to be applied instead to prepay Term Loans and
Acquisition Loans in accordance with paragraph (g) above.
(k) No prepayments of Acquisition Loans shall be required pursuant to
this Section 2.13 prior to the Acquisition Loan Termination Date (other than
prepayments in connection with a reduction in Revolving Credit Commitments
pursuant to paragraph (l) below). On and after the Acquisition Loan Termination
Date, all prepayments of Acquisition Loans pursuant to this Section 2.13 shall
automatically and permanently reduce the Total Revolving Credit Commitment by
the amount of such prepayment.
(l) In the event that, upon the occurrence of any event described in
Section 2.13(b), (c), (d), (e) or (f), no Term Loans, AXELs Loans or Acquisition
Loans are outstanding that are required to be prepaid pursuant to Section
2.13(b), (c), (d), (e), (f) or (k) the Borrower shall reduce the Revolving
Credit Commitments in accordance with paragraph (a) above by the amount of the
applicable Net Cash Proceeds, Extraordinary Amounts or Excess Cash Flow, as the
case may be.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or the Issuing
Bank of the principal of or interest on any Eurodollar Loan made by such Lender
or any Fees or other amounts payable hereunder (other than changes in respect of
taxes imposed on the overall net income of such Lender or the Issuing Bank by
the jurisdiction in which such Lender or the Issuing Bank has its principal
office or by any political subdivision or taxing authority therein), or shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit
extended by any Lender or the Issuing Bank (except any such reserve requirement
which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or
the Issuing Bank or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit
or participation therein, and the result of any of the foregoing shall be to
increase the cost to such Lender or the Issuing Bank of making or maintaining
any Eurodollar Loan or increase the cost to any Lender of issuing or maintaining
any Letter of Credit or purchasing or maintaining a participation therein or to
reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender or the Issuing Bank to be material, then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, upon
demand such additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or
<PAGE> 53
47
any change after the date hereof in any such law, rule, regulation, agreement or
guideline (whether such law, rule, regulation, agreement or guideline has been
adopted) or in the interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration thereof, or
compliance by any Lender (or any lending office of such Lender) or the Issuing
Bank or any Lender's or the Issuing Bank's holding company with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any Governmental Authority has or would have the effect of reducing the rate of
return on such Lender's or the Issuing Bank's capital or on the capital of such
Lender's or the Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made or participations in Letters of Credit purchased by
such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank
pursuant hereto to a level below that which such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's holding company would have achieved but for
such applicability, adoption, change or compliance (taking into consideration
such Lender's or the Issuing Bank's policies and the policies of such Lender's
or the Issuing Bank's holding company with respect to capital adequacy) by an
amount deemed by such Lender or the Issuing Bank to be material, then from time
to time the Borrower shall pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) above shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender or the Issuing Bank the amount shown as due on
any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation. The
protection of this Section shall be available to each Lender and the Issuing
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, agreement, guideline or other change or condition
that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
Base Rate Loans will not thereafter (for such duration) be converted
into Eurodollar Loans), whereupon any request for a Eurodollar
Borrowing (or to convert a Base Rate Borrowing to a Eurodollar
Borrowing or to continue a Eurodollar
<PAGE> 54
48
Borrowing for an additional Interest Period) shall, as to such Lender
only, be deemed a request for a Base Rate Loan (or a request to
continue a Base Rate Loan as such for an additional Interest Period or
to convert a Eurodollar Loan into a Base Rate Loan, as the case may
be), unless such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to Base Rate Loans, in which event all
such Eurodollar Loans shall be automatically converted to Base Rate
Loans as of the effective date of such notice as provided in paragraph
(b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
Base Rate Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to a Base Rate Loan, or the
conversion of the Interest Period with respect to any Eurodollar Loan, in each
case other than on the last day of the Interest Period in effect therefor, or
(iii) any Eurodollar Loan to be made by such Lender (including any Eurodollar
Loan to be made pursuant to a conversion or continuation under Section 2.10) not
being made after notice of such Loan shall have been given by the Borrower
hereunder (any of the events referred to in this clause (a) being called a
"Breakage Event") or (b) any default in the making of any payment or prepayment
required to be made hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the Eurodollar Loan that is the
subject of such Breakage Event for the period from the date of such Breakage
Event to the last day of the Interest Period in effect (or that would have been
in effect) for such Loan over (ii) the amount of interest likely to be realized
by such Lender in redeploying the funds released or not utilized by reason of
such Breakage Event for such period. A certificate of any Lender setting forth
any amount or amounts which such Lender is entitled to receive pursuant to this
Section 2.16 shall be delivered to the Borrower and shall be conclusive absent
manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided below in this
Section 2.17 with respect to Swingline Loans and as required under Sections
2.13(j) and 2.15, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the Commitment
Fees, each reduction of the Term Loan Commitments, AXELs Commitments or the
Revolving Credit Commitments and each conversion of any
<PAGE> 55
49
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Loans). For purposes of determining the available Revolving Credit
Commitments of the Lenders at any time, each outstanding Swingline Loan shall be
deemed to have utilized the Revolving Credit Commitments of the Lenders
(including those Lenders which shall not have made Swingline Loans) pro rata in
accordance with such respective Revolving Credit Commitments. Each Lender agrees
that in computing such Lender's portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender's percentage
of such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Term Loans, AXELs Loans and Revolving Loans and participations in
L/C Disbursements shall be proportionately less than the unpaid principal
portion of the Term Loans, AXELs Loans and Revolving Loans and participations in
L/C Disbursements of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to such
other Lender the purchase price for, a participation in the Term Loans, AXELs
Loans and Revolving Loans and L/C Exposure, as the case may be of such other
Lender, so that the aggregate unpaid principal amount of the Term Loans, AXELs
Loans and Revolving Loans and L/C Exposure and participations in Term Loans,
AXELs Loans and Revolving Loans and L/C Exposure held by each Lender shall be in
the same proportion to the aggregate unpaid principal amount of all Term Loans,
AXELs Loans and Revolving Loans and L/C Exposure then outstanding as the
principal amount of its Term Loans, AXELs Loans and Revolving Loans and L/C
Exposure prior to such exercise of banker's lien, setoff or counterclaim or
other event was to the principal amount of all Term Loans, AXELs Loans and
Revolving Loans and L/C Exposure outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.18
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. The
Borrower and Allied expressly consent to the foregoing arrangements and agree
that any Lender holding a participation in a Term Loan, AXELs Loan or Revolving
Loan or L/C Disbursement deemed to have been so purchased may exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrower and Allied to such Lender by reason thereof as
fully as if such Lender had made a Loan directly to the Borrower in the amount
of such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 12:00 (noon), New York City time, on the date when due in immediately
available dollars, without setoff, defense or
<PAGE> 56
50
counterclaim. Each such payment (other than (i) Issuing Bank Fees, which shall
be paid directly to the Issuing Bank, and (ii) principal of and interest on
Swingline Loans, which shall be paid directly to the Swingline Lender except as
otherwise provided in Section 2.22(e)) shall be made to the Administrative Agent
at its offices at 11 Madison Avenue, New York, New York.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on behalf of the
Borrower or any Loan Party hereunder and under any other Loan Document shall be
made, in accordance with Section 2.19, free and clear of and without deduction
for any and all current or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding (i) income
taxes imposed on the net income of the Administrative Agent, the Syndication
Agent, the Documentation Agent, any Lender or the Issuing Bank (or any
transferee or assignee thereof, including a participation holder (any such
entity a "Transferee")) and (ii) franchise taxes imposed on the net income of
the Administrative Agent, the Syndication Agent, the Documentation Agent, any
Lender or the Issuing Bank (or Transferee), in each case by the jurisdiction
under the laws of which the Administrative Agent, the Syndication Agent, the
Documentation Agent, such Lender or the Issuing Bank (or Transferee) is
organized or in which the principal office or applicable lending office of the
Administrative Agent, the Syndication Agent, the Documentation Agent, such
Lender or the Issuing Bank (or Transferee) is located or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, being
called "Taxes"). If the Borrower or any Loan Party shall be required to deduct
any Taxes from or in respect of any sum payable hereunder or under any other
Loan Document to the Administrative Agent, the Syndication Agent, the
Documentation Agent, any Lender or the Issuing Bank (or any Transferee), (i) the
sum payable shall be increased by the amount (an "additional amount") necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.20) the Administrative Agent, the
Syndication Agent, the Documentation Agent, such Lender or the Issuing Bank (or
Transferee), as the case may be, shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower or such
Loan Party shall make such deductions and (iii) the Borrower or such Loan Party
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (including, without limitation, mortgage recording taxes and
similar fees) that arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Document ("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent, the
Syndication Agent, the Documentation Agent, each Lender and the Issuing Bank (or
Transferee) for the full amount of
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Taxes and Other Taxes paid by the Administrative Agent, such Lender or the
Issuing Bank (or Transferee), as the case may be, and any liability (including
penalties, interest and expenses (including reasonable attorney's fees and
expenses)) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the relevant Governmental
Authority (it being understood that such indemnification shall not impair any
right that the Borrower may have to contest with the relevant Governmental
Authority such Taxes or Other Taxes). A certificate as to the amount of such
payment or liability prepared by the Administrative Agent, the Syndication
Agent, the Documentation Agent, a Lender or the Issuing Bank (or Transferee), or
the Administrative Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Administrative Agent, any Lender, the
Syndication Agent, the Documentation Agent, or the Issuing Bank (or Transferee),
as the case may be, makes written demand therefor.
(d) As soon as practicable after the date of any payment of Taxes or
Other Taxes by the Borrower or any other Loan Party to the relevant Governmental
Authority, the Borrower or such other Loan Party will deliver to the
Administrative Agent, at its address referred to in Section 9.01, the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing payment thereof.
(e) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent two copies of either United States Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, a certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S.
Federal withholding tax on payments by the Borrower under this Agreement and the
other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "New Lending Office"). In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this Section 2.20(e), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.20(e) that
such Non-U.S. Lender is not legally able to deliver.
(f) The Borrower shall not be required to indemnify any Non-U.S. Lender
or to pay any additional amounts to any Non-U.S. Lender, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed on the date such Non-U.S. Lender
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became a party to this Agreement (or, in the case of a Transferee that is a
participation holder, on the date such participation holder became a Transferee
hereunder) or, with respect to payments to a New Lending Office, the date such
Non-U.S. Lender designated such New Lending Office with respect to a Loan;
provided, however, that this paragraph (f) shall not apply (x) to any Transferee
or New Lending Office that becomes a Transferee or New Lending Office as a
result of an assignment, participation, transfer or designation made at the
request of the Borrower and (y) to the extent the indemnity payment or
additional amounts any Transferee, or any Lender (or Transferee), acting through
a New Lending Office, would be entitled to receive (without regard to this
paragraph (f)) do not exceed the indemnity payment or additional amounts that
the person making the assignment, participation or transfer to such Transferee,
or Lender (or Transferee) making the designation of such New Lending Office,
would have been entitled to receive in the absence of such assignment,
participation, transfer or designation or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of paragraph (e) above.
(g) Nothing contained in this Section 2.20 shall require any Lender or
the Issuing Bank (or any Transferee) or the Administrative Agent, the
Syndication Agent or the Documentation Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank
pursuant to Section 2.20, the Borrower may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in
Section 9.04(b)), upon notice to such Lender or the Issuing Bank and the
Administrative Agent, require such Lender or the Issuing Bank to transfer and
assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Credit Commitment is being assigned, of the Issuing
Bank and the Swingline Lender), which consent shall not unreasonably be
withheld, and (z) the Borrower or such assignee shall have paid to the affected
Lender or the Issuing Bank in immediately available funds an amount equal to the
sum of the principal of and interest accrued to the date of such payment on the
outstanding Loans or L/C Disbursements of such Lender or the Issuing Bank,
respectively, plus all Fees and other amounts accrued for the account of such
Lender or the Issuing Bank hereunder (including any amounts under Section 2.14
and Section 2.16); provided further that, if prior to the giving of such notice
the circumstances or event that resulted in such Lender's or the Issuing Bank's
claim for compensation under Section 2.14 or notice under Section 2.15 or the
amounts paid pursuant to Section 2.20, as the case may be, cease to cause such
Lender or the Issuing Bank to suffer increased costs or reductions in amounts
received or receivable or reduction in return on capital, or cease to have the
consequences specified in Section 2.15, or cease to result in amounts being
payable under
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Section 2.20, as the case may be (including as a result of any action taken by
such Lender or the Issuing Bank pursuant to paragraph (b) below), or if such
Lender or the Issuing Bank shall waive its right to claim further compensation
under Section 2.14 in respect of such circumstances or event or shall withdraw
its notice under Section 2.15 or shall waive its right to further payments under
Section 2.20 in respect of such circumstances or event, as the case may be, then
such Lender or the Issuing Bank shall not thereafter be required to make any
such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or the
Issuing Bank in connection with any such filing or assignment, delegation and
transfer.
SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans to the Borrower at any time
and from time to time on and after the Closing Date and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitments in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in (i) the aggregate
principal amount of all Swingline Loans exceeding $20,000,000 in the aggregate
or (ii) the Aggregate Revolving Credit Exposure, after giving effect to any
Swingline Loan, exceeding the Total Revolving Credit Commitment. Each Swingline
Loan shall be in a minimum principal amount of $1,000,000 that is an integral
multiple of $250,000. The Swingline Commitment may be terminated or reduced from
time to time as provided herein. Within the foregoing limits, the Borrower may
borrow, pay or prepay and reborrow Swingline Loans hereunder, subject to the
terms, conditions and limitations set forth herein.
(b) Swingline Loans. The Borrower shall notify the Administrative Agent
by telecopy, or by telephone (confirmed by telecopy), not later than 10:00 a.m.,
New York City time, on the day of a proposed Swingline Loan. Such notice shall
be delivered on a Business Day, shall be irrevocable and shall refer to this
Agreement and shall specify the requested date (which shall be a Business Day)
and amount of such Swingline Loan. The Administrative Agent will promptly advise
the Swingline Lender of any notice received from the Borrower pursuant to this
paragraph (b). The Swingline Lender shall make each Swingline Loan available to
the Borrower by means of a credit to an account in the name of the Borrower
designated by the Borrower by 3:00 p.m. on the date such Swingline Loan is so
requested.
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(c) Prepayment. The Borrower shall have the right at any time and from
time to time to prepay any Swingline Loan, in whole or in part, upon giving
written or telecopy notice (or telephone notice promptly confirmed by written,
or telecopy notice) to the Swingline Lender and to the Administrative Agent
before 12:00 (noon), New York City time on the date of prepayment at the
Swingline Lender's address for notices specified on Schedule 2.01. All principal
payments of Swingline Loans shall be accompanied by accrued interest on the
principal amount being repaid to the date of payment.
(d) Interest. Each Swingline Loan shall be a Base Rate Loan and,
subject to the provisions of Section 2.07, shall bear interest as provided in
Section 2.06(a).
(e) Participations. The Swingline Lender may by written notice given to
the Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Revolving Credit Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Credit Lenders will participate. The Administrative Agent will, promptly upon
receipt of such notice, give notice to each Revolving Credit Lender, specifying
in such notice such Lender's Pro Rata Percentage of such Swingline Loan or
Loans. In furtherance of the foregoing, each Revolving Credit Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Revolving Credit Lender's Pro Rata Percentage of such Swingline Loan or
Loans. Each Revolving Credit Lender acknowledges and agrees that its obligation
to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or an Event of
Default, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Revolving Credit Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.02(c) with respect
to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis,
to the payment obligations of the Lenders) and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrower (or
other party liable for obligations of the Borrower) of any default in the
payment thereof.
SECTION 2.23. Letters of Credit. (a) General. The Borrower may request
the issuance of a Letter of Credit for its own account or the account of any
other Account Party (provided that the Borrower shall be a co-applicant and
co-obligor with respect to each Letter of Credit issued for the account of any
other Account Party), in a form reasonably acceptable to the
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Administrative Agent and the Issuing Bank, at any time and from time to time
while the Revolving Credit Commitments remain in effect. This Section shall not
be construed to impose an obligation upon the Issuing Bank to issue any Letter
of Credit that is inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the Borrower shall hand deliver
or telecopy to the Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of Credit. Following
receipt of such notice and prior to the issuance of the requested Letter of
Credit or the applicable amendment, renewal or extension, the Administrative
Agent shall notify the Issuing Bank of the amount of the Aggregate Revolving
Credit Exposure after giving effect to (i) the issuance, amendment, renewal or
extension of such Letter of Credit, (ii) the issuance or expiration of any other
Letter of Credit that is to be issued or will expire prior to the requested date
of issuance of such Letter of Credit and (iii) the borrowing or repayment of any
Revolving Credit Loans or Swingline Loans that (based upon notices delivered to
the Administrative Agent by the Borrower) are to be borrowed or repaid prior to
the requested date of issuance of such Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if, and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that, after giving effect to such issuance,
amendment, renewal or extension (A) the L/C Exposure shall not exceed
$150,000,000 and (B) the Aggregate Revolving Credit Exposure shall not exceed
the Total Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the date one year after the date of the issuance of such Letter of
Credit (other than any Back-up Letter of Credit, which shall expire on the
expiry date of the letter of credit that such Back-up Letter of Credit supports,
as set forth on Schedule 1.01(a)), unless such Letter of Credit expires by its
terms on an earlier date; provided, however, that each Letter of Credit may,
upon the request of the Borrower, include a provision whereby such Letter of
Credit shall be renewed automatically for additional consecutive periods 12
months or less unless the Issuing Bank notifies the beneficiary thereof not more
than 45, nor fewer than 30, days prior to the then applicable expiry date (or
such other notification periods as set forth in the Back-up Letters of Credit as
set forth on Schedule 1.01(a)) that such Letter of Credit will not be renewed;
provided further, however, that no Letter of Credit may expire or be extended
beyond the date that is five Business Days prior to the Revolving Credit
Maturity Date unless, on or prior to the date such Letter of Credit is issued or
extended, the Borrower shall have deposited with the Collateral Agent an amount
equal to 110% of the face amount of such Letter of Credit in a cash collateral
account established with the Collateral Agent for the benefit of the Secured
Parties.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the applicable Issuing Bank, a
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participation in such Letter of Credit equal to such Lender's Pro Rata
Percentage of the aggregate amount available to be drawn under such Letter of
Credit, effective upon the issuance of such Letter of Credit. In addition, the
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
the Issuing Bank, a participation in each Existing Letter of Credit equal to
such Lender's Pro Rata Percentage of the face amount of such Existing Letter of
Credit, effective on the Closing Date. In consideration and in furtherance of
the foregoing, each Revolving Credit Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Lender's Pro Rata Percentage of each L/C Disbursement
made by the Issuing Bank and not reimbursed by the applicable Account Party (or,
if applicable, another party pursuant to its obligations under any other Loan
Document) forthwith on the date due as provided in Section 2.02(f). Each
Revolving Credit Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or an Event of
Default, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the applicable Account Party shall pay to the
Administrative Agent an amount equal to such L/C Disbursement not later than two
hours after such Account Party shall have received notice from the Issuing Bank
that payment of such draft will be made, or, if such Account Party shall have
received such notice later than 10:00 a.m., New York City time, on any Business
Day, not later than 10:00 a.m., New York City time, on the immediately following
Business Day.
(f) Obligations Absolute. Each Account Party's obligations to reimburse
L/C Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that the Account Party, any other party guaranteeing, or
otherwise obligated with, the Account Party, any Subsidiary or other
Affiliate thereof or any other person may at any time have against the
beneficiary under any Letter of Credit, the Issuing Bank, the
Administrative Agent or any Lender or any other person, whether in
connection with this Agreement, any other Loan Document or any other
related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
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(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever (other than
payment against presentation of drafts or documents that, as a result
of the Issuing Bank's negligence, do not comply with the terms of such
Letter of Credit), whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or
equitable discharge of the Account Party's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of each
Account Party hereunder to reimburse L/C Disbursements will not be excused by
the gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
such Account Party to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower, Allied and the other Account Parties to the extent permitted by
applicable law) suffered by such Account Party that are caused by the Issuing
Bank's gross negligence or wilful misconduct in determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof; it is understood that the Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary and, in making any
payment under any Letter of Credit (i) the Issuing Bank's exclusive reliance on
the documents presented to it under such Letter of Credit as to any and all
matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the applicable Account Party of such demand for payment and whether the
Issuing Bank has made or will make an L/C Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the Account
Party of its obligation to reimburse the Issuing Bank and the Revolving Credit
Lenders with respect to any such L/C Disbursement. The Administrative Agent
shall promptly give each Revolving Credit Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the applicable
Account Party shall reimburse such L/C
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Disbursement in full on such date, the unpaid amount thereof shall bear interest
for the account of the Issuing Bank, for each day from and including the date of
such L/C Disbursement, to but excluding the earlier of the date of payment by
the applicable Account Party or the date on which interest shall commence to
accrue thereon as provided in Section 2.02(f), at the rate per annum that would
apply to such amount if such amount were a Base Rate Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder. At the time such removal or
resignation shall become effective, the Borrower shall pay all accrued and
unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of any appointment
as the Issuing Bank hereunder by a successor Lender shall be evidenced by an
agreement entered into by such successor, in a form satisfactory to the Borrower
and the Administrative Agent, and, from and after the effective date of such
agreement, (i) such successor Lender shall have all the rights and obligations
of the previous Issuing Bank under this Agreement and the other Loan Documents
and (ii) references herein and in the other Loan Documents to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the resignation or removal of the Issuing Bank hereunder, the
retiring Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
The Administrative Agent may, at the request of the Borrower, appoint a
Lender to issue a specific Letter of Credit under this Agreement in accordance
with the terms hereof, provided that such appointment shall only be made if the
Borrower can demonstrate that such Letter of Credit may not be issued by the
Issuing Bank or would not otherwise be accepted by the beneficiary of such
Letter of Credit; provided, further, that such appointment shall in no way be
deemed a resignation or removal of the Issuing Bank under this Agreement. Such
appointment shall be subject to the consent of the applicable Lender. Unless the
context otherwise requires, references herein and in the other Loan Documents to
the term Issuing Bank shall refer to the Issuing Bank hereunder and such Lender
appointed by the Administrative Agent to issue a Letter of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, or if the Total Revolving Credit Commitment is less than the
aggregate L/C Exposure, the Borrower shall, on the Business Day following which
it receives notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit) thereof and
of the amount to be deposited, deposit in an account with the Collateral Agent,
for the benefit of the Revolving Credit Lenders, an amount in cash equal to the
L/C Exposure as of such date. Such deposit shall
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be held by the Collateral Agent as collateral for the payment and performance of
the Obligations. The Collateral Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits in Permitted Investments,
which investments shall be made at the option and sole discretion of the
Collateral Agent, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall (i) automatically be applied by the Administrative Agent to
reimburse the Issuing Bank for L/C Disbursements (and all accrued interest
thereon) for which it has not been reimbursed, (ii) be held for the satisfaction
of the reimbursement obligations of the Borrower for the L/C Exposure at such
time and (iii) if the maturity of the Loans has been accelerated (but subject to
the consent of Revolving Credit Lenders holding participations in outstanding
Letters of Credit representing greater than 50% of the aggregate undrawn amount
of all outstanding Letters of Credit), be applied to satisfy the Obligations. If
the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived. If the Borrower is
required to provide an amount of cash collateral hereunder pursuant to Section
2.13(a), such amount shall be returned to the Borrower from time to time to the
extent that the amount of such cash collateral held by the Collateral Agent
exceeds the excess, if any, of the aggregate L/C Exposure over the Total
Revolving Credit Commitment; provided, that such return shall not be required at
any time that an Event of Default has occurred and is continuing.
ARTICLE III
Representations and Warranties
Each of Allied and the Borrower represents and warrants to the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Collateral Agent, the Issuing Bank and each of the Lenders that:
SECTION 3.01. Organization; Powers. Each of Allied, the Borrower and
each of the Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted, (c) is
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify
could not reasonably be expected to result in a Material Adverse Effect, and (d)
has the corporate power and authority to execute, deliver and perform its
obligations under each of the Loan Documents and each other agreement or
instrument contemplated hereby to which it is or will be a party and, in the
case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents to which such Loan Party is a
party, and in the case of the Borrower the borrowings hereunder, and in the case
of Allied, the Borrower and applicable Subsidiaries, the Acquisition and the
other transactions contemplated hereby and by the Stock Purchase Agreement,
including the refinancing of the Existing Credit Agreement (collectively,
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the "Transactions") (a) have been duly authorized by all requisite corporate
and, if required, stockholder action and (b) will not (i) violate (A) any
provision of law, statute, rule or regulation, or of the certificate or articles
of incorporation or other constitutive documents or by-laws of Allied, the
Borrower or any Subsidiary, (B) any order of any Governmental Authority or (C)
any provision of any indenture, agreement or other instrument to which Allied,
the Borrower or any Subsidiary is a party or by which any of them or any of
their property is or may be bound, (ii) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default
under, or give rise to any right to accelerate or to require the prepayment,
repurchase or redemption of any obligation under any such indenture, agreement
or other instrument or (iii) result in the creation or imposition of any Lien
upon or with respect to any property or assets now owned or hereafter acquired
by Allied, the Borrower or any Subsidiary (other than any Lien created hereunder
or under the Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Allied and the Borrower and constitutes, and each other Loan
Document when executed and delivered by the each Loan Party party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and other similar
filings to perfect the interests of the Secured Parties in the Collateral, (b)
such as will have been made or obtained and will be in full force and effect as
of the Closing Date and (c) such as may be required in the ordinary course of
business in connection with the performance of the obligations of Allied and the
Borrower hereunder and in connection with the Transactions.
SECTION 3.05. Financial Statements. (a) Allied has heretofore furnished
to the Lenders its consolidated balance sheets and statements of operations,
cash flows and stockholders' equity (i) as of and for each of the three fiscal
years ended December 31, 1995, audited by and accompanied by the opinion of
Arthur Andersen LLP, independent public accountants, and (ii) as of and for the
fiscal quarter and the portion of the fiscal year ended September 30, 1996,
certified by a Financial Officer of Allied. Such financial statements present
fairly in all material respects the financial condition and results of
operations and cash flows of Allied and its consolidated Subsidiaries as of such
dates and for such periods. Such financial statements were prepared in
accordance with GAAP applied on a consistent basis.
(b) Allied has heretofore delivered to the Lenders its unaudited pro
forma consolidated balance sheet as of September 30, 1996, prepared giving
effect to the Transactions as if they had occurred on such date. Such pro forma
balance sheet has been prepared in good faith by Allied based on the assumptions
used to prepare the pro forma financial information contained in the
Confidential Information Memorandum (which assumptions are believed by Allied on
the date hereof to be reasonable), is based on the best information available to
Allied as of the date of delivery thereof, accurately reflects all material
adjustments required to be made to give effect to the Transactions and presents
fairly on a pro forma basis the estimated consolidated financial position of
Allied as of September 30, 1996, assuming that the Transactions had actually
occurred at September 30, 1996.
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SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, prospects, condition,
financial or otherwise, or material agreements of Allied, the Borrower and the
Subsidiaries (other than the Laidlaw Subsidiaries), taken as a whole, since
December 31, 1995, or of the Laidlaw Subsidiaries, taken as a whole, since
August 31, 1996.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Allied, the Borrower and the Subsidiaries has good and indefeasible title to, or
valid leasehold interests in, all its material properties and assets, except for
minor defects in title that do not materially interfere with its ability to
conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes. All such material properties and assets are
free and clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of Allied, the Borrower and the Subsidiaries has complied with
all obligations under all material leases to which it is a party and all such
leases are in full force and effect, except where failure to do so could not
reasonably be expected to have a Material Adverse Effect. Each of Allied, the
Borrower and the Subsidiaries enjoys peaceful and undisturbed possession under
all such material leases, except where failure to do so could not reasonably be
expected to have a Material Adverse Effect.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing
Date a list of all Subsidiaries. Each such Subsidiary is a wholly owned
Subsidiary except as otherwise indicated on Schedule 3.08. The shares of capital
stock or other ownership interests issued by the Borrower and the Subsidiaries
and owned by Allied, the Borrower or the Subsidiaries are fully paid and
non-assessable and are owned by Allied or the Borrower, directly or indirectly,
free and clear of all Liens (other than Liens permitted by this Agreement).
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of Allied or the Borrower, threatened against or affecting Allied or
the Borrower or any Subsidiary or any business, property or rights of any such
person (i) that involve any Loan Document or the Transactions or (ii) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
(b) None of Allied, the Borrower or any of the Subsidiaries or any of
their respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits), or is
in default with respect to any judgment, writ, injunction, decree or order of
any Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. Agreements. (a) None of Allied, the Borrower or any of
the Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
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(b) None of Allied, the Borrower or any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of Allied, the
Borrower or any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation G, T,
U or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. None of Allied, the Borrower or any Subsidiary is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of Allied, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns or materials required to have been filed by it and has paid
or caused to be paid all taxes due and payable by it and all assessments
received by it, except taxes that are being contested in good faith by
appropriate proceedings and for which Allied, the Borrower or such Subsidiary,
as applicable, shall have set aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of Allied or the
Borrower to the Syndication Agent, the Administrative Agent, the Documentation
Agent or any Lender in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto contained, contains or will
contain any material misstatement of fact or omitted, omits or will omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were, are or will be made, not misleading;
provided that to the extent any such information, report, financial statement,
exhibit or schedule was based upon or constitutes a forecast, projection or
expressions of opinion, each of Allied and the Borrower represents only that it
acted in good faith and utilized reasonable assumptions and due care in the
preparation of such information, report, financial statement, exhibit or
schedule.
SECTION 3.16. Employee Benefit Plans. Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder, except where non-compliance could
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not reasonably be expected to have a Material Adverse Effect. No ERISA Event has
occurred or is reasonably expected to occur that, when taken together with all
other such ERISA Events, could reasonably be expected to result in material
liability of the Borrower or any of its ERISA Affiliates, except where such
liability could not reasonably be expected to have a Material Adverse Effect.
The present value of all benefit liabilities under each Plan (based on those
assumptions used to fund such Plan) did not, as of the last annual valuation
date applicable thereto, exceed by more than $3,000,000 the fair market value of
the assets of such Plan, and the present value of all benefit liabilities of all
underfunded Plans (based on those assumptions used to fund each such Plan) did
not, as of the last annual valuation dates applicable thereto, exceed by more
than $3,000,000 fair market value of the assets of all such underfunded Plans.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) The facilities and properties owned, leased or operated by Allied,
the Borrower and the Subsidiaries (the "Properties") do not contain, and have
not previously contained, to the Borrower's best knowledge (actual or
constructive) any Hazardous Materials in amounts or concentrations which (i)
constitute, or constituted a violation of, (ii) require Remedial Action under,
or (iii) could give rise to liability under, Environmental Laws, which
violations, Remedial Actions and liabilities, in the aggregate, could reasonably
be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last five years have been in
compliance, with all Environmental Laws and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect;
(c) There have been no Releases or threatened Releases at, from, under
or proximate to the Properties or otherwise in connection with the operations of
the Borrower or the Subsidiaries, which Releases or threatened Releases, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d) None of Allied, the Borrower or any of the Subsidiaries has
received any notice of an Environmental Claim in connection with the Properties
or the operations of the Borrower or the Subsidiaries or with regard to any
person whose liabilities for environmental matters Allied, the Borrower or the
Subsidiaries has retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, nor do Allied, the Borrower or
the Subsidiaries have reason to believe that any such notice will be received or
is being threatened; and
(e) Hazardous Materials have not been transported from the Properties,
nor have Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of the Properties in a manner that could give rise to liability
under any Environmental Law, nor have the Borrower or the Subsidiaries retained
or assumed any liability, contractually, by operation of law or otherwise, with
respect to the generation, treatment, storage or disposal of Hazardous
Materials, which transportation, generation, treatment, storage or disposal, or
retained or
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assumed liabilities, in the aggregate, could reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by Allied, the Borrower or by
Allied or the Borrower for its Subsidiaries as of the date hereof and the
Closing Date. As of each such date, such insurance is in full force and effect
and all premiums have been duly paid. Allied, the Borrower and its Subsidiaries
have insurance in such amounts and covering such risks and liabilities as are in
accordance with normal industry practice.
SECTION 3.19. Security Documents. (a) On and after the Closing Date,
each of the Pledge Agreement and the Allied Finance Pledge Agreement will be
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement and the Allied Finance Pledge
Agreement, as applicable) and, when the certificates evidencing the investment
securities that constitute the Pledged Securities (as defined in the Pledge
Agreement and the Allied Finance Pledge Agreement, as applicable) are delivered
to the Collateral Agent, the Collateral Agent shall have a fully perfected first
priority Lien on, and security interest in, all right, title and interest of the
pledgors thereunder in such Collateral, in each case prior and superior in right
to any other person.
(b) On and after the Closing Date, the Security Agreement will be
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Security Agreement) and, when financing statements
in appropriate form are filed in the offices specified in the Perfection
Schedule, the Security Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the grantors thereunder
in all such Collateral in which a security interest may be perfected by filing,
each case prior and superior in right to any other person, other than with
respect to Liens expressly permitted by Section 6.02.
(c) On and after the Closing Date, each Canadian Debenture Pledge
Agreement will be effective to create in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable security
interest in the applicable Canadian Debenture granted by the applicable Canadian
Subsidiary, and the Collateral Agent shall have a fully perfected first priority
Lien on, and security interest in, all right, title and interest of the pledgors
thereunder in such Canadian Debenture, in each case prior and superior in right
to any other person in the Canadian Debenture, other than with respect to Liens
expressly permitted by Section 6.02.
(d) On and after the Closing Date, each Canadian Debenture will be
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
personal property forming part of the Charged Premises (as defined in such
Canadian Debenture) and each Canadian Debenture will constitute, when financing
statements in appropriate form are filed in the appropriate offices in the
jurisdictions specified in the perfection certificate relating to the Canadian
Subsidiaries (the "Canadian Perfection Certificate"), a fully perfected Lien on,
and security interest in, all right, title and interest of the grantors
thereunder in such Charged Premises in which a security interest may be
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perfected by filing such financing statements, in each case prior and superior
in right to any other person, other than with respect to Liens expressly
permitted by Section 6.02.
(e) On and after the Closing Date, each Canadian Debenture will be
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable Lien on the applicable
Canadian Subsidiary's right, title and interest in and to the Real Property (as
defined in such Canadian Debenture) thereunder and all proceeds thereof when the
Canadian Debenture is filed in the appropriate Land Registry or Land Titles
offices (along with any necessary filing statements and a full legal description
of such Real Property), and the Canadian Debenture shall then constitute a fully
perfected Lien on all right, title and interest of such Canadian Subsidiary in
such Real Property and the proceeds thereof, in each case prior and superior in
right to any other person, other than with respect to the rights of persons
pursuant to Liens expressly permitted by Section 6.02.
(f) On and after the Closing Date, each Canadian Securities Pledge
Agreement will be effective to create in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Securities (as defined in such Canadian Securities Pledge
Agreement) and the Collateral Agent shall have a fully perfected first priority
Lien on, and security interest in, all right, title and interest of the pledgors
thereunder in such Securities, in each case prior and superior in right to any
other person, other than with respect to Liens expressly permitted by Section
6.02.
(g) On and after the Closing Date, each Canadian General Assignment of
Book Debts will be effective to create in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Debts (as defined in such Canadian General Assignment of Book
Debts) and the Collateral Agent shall have a fully perfected first priority Lien
on, and security interest in, all right, title and interest of the pledgors
thereunder in such Debts, in each case prior and superior in right to any other
person, other than with respect to Liens expressly permitted by Section 6.02.
(h) On and after the Closing Date, each Hypothec will be effective to
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable hypothec for an amount set forth in such
Hypothec bearing interest at the rate per annum set forth in such Hypothec in
the (i) movable (personal) property forming a part of the Charged Premises (as
defined in such Hypothec) upon the registration at the Quebec Register of
Personal and Movable Real Rights of the application for registration of a
hypothec related thereto; and (ii) the immovable (real) properties specifically
listed in such Hypothec (except that no registrable description of the immovable
properties is included therein and no filings, registration or recordation with
respect to such immovable (real) properties on any land register will have been
made), in each case, in accordance with its terms and prior and superior in
right to any other person, other than with respect to the Liens expressly
permitted by Section 6.02 and accounting for the fact that no filing,
registration or recordation with respect to such immovable (real) properties
will have been made.
SECTION 3.20. Labor Matters. As of the date hereof and the Closing
Date, there are no strikes, lockouts or slowdowns against Allied, the Borrower
or any Subsidiary pending or, to the knowledge of Allied or the Borrower,
threatened, which could reasonably be expected to
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result in a Material Adverse Effect. The hours worked by and payments made to
employees of Allied, the Borrower and the Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters, which could reasonably be
expected to result in a Material Adverse Effect. All payments due from Allied,
the Borrower or any Subsidiary, or for which any claim may be made against
Allied, the Borrower or any Subsidiary, on account of wages and employee health
and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of Allied, the Borrower or such Subsidiary, except where
the failure to do so could not reasonably be expected to result in a Material
Adverse Effect. The consummation of the Transactions will not give rise to any
right of termination or right of renegotiation on the part of any union under
any collective bargaining agreement to which Allied, the Borrower or any
Subsidiary is bound, except where such event could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.21. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan made on the Closing Date and after giving effect to the application
of the proceeds of such Loans, and taking into account all rights of indemnity,
subrogation and contribution of the Loan Parties under applicable law and under
the Indemnity, Subrogation and Contribution Agreement, (i) the fair value of the
assets of Allied, the Borrower and the other Loan Parties, on a consolidated
basis, at a fair valuation, will exceed its debts and liabilities, subordinated,
contingent or otherwise; (ii) the present fair saleable value of the property of
Allied, the Borrower and the other Loan Parties, on a consolidated basis, will
be greater than the amount that will be required to pay the probable liability
of its debts and other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured; (iii) Allied, the
Borrower and the other Loan Parties, on a consolidated basis, will be able to
pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (iv) Allied, the Borrower
and the other Loan Parties, on a consolidated basis, will not have unreasonably
small capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the Closing
Date.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing,
including each Borrowing of a Swingline Loan and on the date of each issuance,
amendment, renewal or extension of a Letter of Credit (each such event being
called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance,
amendment, renewal or extension of a Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance,
amendment, renewal or extension of such Letter of Credit as required by Section
2.23(b) or, in
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the case of the Borrowing of a Swingline Loan, the Swingline Lender and the
Administrative Agent shall have received a notice requesting such Swingline Loan
as required by Section 2.22(b).
(b) Except in the case of a Borrowing that does not increase the
aggregate principal amount of Loans outstanding of any Lender, the
representations and warranties set forth in Article III hereof shall be true and
correct in all material respects on and as of the date of such Credit Event with
the same effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) The Borrower and each other Loan Party shall be in compliance with
all the terms and provisions set forth herein and in each other Loan Document on
its part to be observed or performed, and at the time of and immediately after
such Credit Event, no Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by
the Borrower and Allied on the date of such Credit Event as to the matters
specified in paragraphs (b) (except as aforesaid) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Bank, a favorable written opinion
of (i) Porter & Hedges, L.L.P., counsel for Allied and the Borrower,
substantially to the effect set forth in Exhibit N-1, (ii) Thomas K.
Kehoe, Esq., internal counsel of Allied and the Borrower, substantially
to the effect set forth in Exhibit N-2, (iii) Davies, Ward & Beck,
special Canadian counsel for Allied and the Borrower and each Canadian
Local Counsel set forth on Schedule 4.02(a), substantially to the
effect set forth in Exhibit N-3 and (iv) Ivan R. Cairns, Esq., internal
counsel for Laidlaw, substantially to the effect set forth in Exhibit
N-4, in each case (A) dated the Closing Date, (B) addressed to the
Issuing Bank, the Administrative Agent, the Syndication Agent, the
Documentation Agent and the Lenders, and (C) covering such other
matters relating to the Loan Documents and the Transactions as the
Administrative Agent, the Syndication Agent or the Documentation Agent
shall reasonably request, and Allied and the Borrower hereby request
such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the
Borrowings and extensions of credit hereunder and the other Loan
Documents shall be satisfactory to the Lenders, to the Issuing Bank and
to Cravath, Swaine & Moore, counsel for the Syndication Agent, the
Administrative Agent and the Documentation Agent.
(c) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation, including all amendments
thereto, of each of Allied, the Borrower, Allied Finance, Allied Canada
and each other material Loan Party, certified by the appropriate
government officials of the jurisdiction of its incorporation, and a
certificate as to the status, compliance or good standing of each of
Allied, the Borrower, Allied Finance, Allied Canada and each other
material Loan Party as of a recent date,
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from such Secretary of State, or in the case of Canadian Subsidiaries,
an appropriate government official; (ii) a certificate of the Secretary
or Assistant Secretary of each of Allied, the Borrower, Allied Finance,
Allied Canada and each other material Loan Party dated the Closing Date
and certifying (A) that attached thereto is a true and complete copy of
the by-laws of Allied, the Borrower, Allied Finance, Allied Canada or
each such other material Loan Party, as the case may be, as in effect
on the Closing Date and at all times since a date prior to the date of
the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors (or if applicable, the shareholder or shareholders)
of the Loan Parties authorizing the execution, delivery and performance
of the Loan Documents to which such person is a party and, in the case
of the Borrower, the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full force and
effect, (C) that the certificate or articles of incorporation of such
Loan Party have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature
of each officer or director executing any Loan Document or any other
document delivered in connection herewith on behalf of such Loan Party;
(iii) a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing
the certificate pursuant to (ii) above; and (iv) such other documents
as the Lenders, the Issuing Bank or Cravath, Swaine & Moore, counsel
for the Administrative Agent, the Syndication Agent and the
Documentation Agent may reasonably request.
(d) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of the Borrower, confirming compliance with the conditions precedent
set forth in paragraphs (b) and (c) of Section 4.01.
(e) The Administrative Agent, the Syndication Agent and the
Documentation Agent shall have received all Fees and other amounts due
and payable on or prior to the Closing Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder or under
any other Loan Document (it being understood that, to the extent not
invoiced, such expense shall be paid after the Closing Date promptly
upon the presentation of invoices therefor).
(f) Each of the Pledge Agreement and the Allied Finance Pledge
Agreement shall have been duly executed by the parties thereto and
delivered to the Collateral Agent and shall be in full force and
effect, and (i) all the outstanding capital stock of the Borrower and
the Subsidiaries to the extent set forth in the Pledge Agreement and
(ii) the Allied Canada Debentures shall have been, in each case, duly
and validly pledged under the Pledge Agreement or the Allied Finance
Pledge Agreement, as applicable, to the Collateral Agent for the
ratable benefit of the Secured Parties and certificates representing
such shares and the Allied Canada Debentures, accompanied by
instruments of transfer and stock powers endorsed in blank, shall be in
the actual possession of the Collateral Agent. Each Canadian Securities
Pledge Agreement shall have been duly executed by the parties thereto
and shall have been delivered to the Collateral Agent and shall be in
full force and effect on such date and each document (including
appropriate financing
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statements) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the Secured
Parties a legal, valid and perfected first-priority security interest
and hypothec in and lien on the Securities (subject to any Lien
expressly permitted by Section 6.02) described in such agreement shall
have been delivered to the Collateral Agent.
(g) The Security Agreement shall have been duly executed by
the parties thereto and shall have been delivered to the Collateral
Agent and shall be in full force and effect on such date and each
document (including each Uniform Commercial Code financing statement)
required by law or reasonably requested by the Administrative Agent to
be filed, registered or recorded in order to create in favor of the
Collateral Agent for the benefit of the Secured Parties a valid, legal
and perfected first-priority security interest in and lien on the
Collateral (subject to any Lien expressly permitted by Section 6.02)
described in such agreement shall have been delivered to the Collateral
Agent; and each of the Canadian Collateral Covenant Agreement and the
Allied Finance Collateral Covenant Agreement shall have been duly
executed by the parties thereto, shall be delivered to the Collateral
Agent and shall be in full force and effect. Each Canadian Debenture
and each Canadian Debenture Pledge Agreement shall have been duly
executed by the parties thereto and shall have been delivered to the
Collateral Agent and shall be in full force and effect on such date and
each document (including appropriate financing statements) (or evidence
that such document has been filed, registered or recorded, as
applicable) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the Secured
Parties a legal, valid and perfected first-priority security interest
in and lien on the property forming part of the Charged Premises
(subject to any Lien expressly permitted by Section 6.02) described in
such agreement shall have been delivered to the Collateral Agent. Each
Canadian General Assignment of Book Debts shall have been duly executed
by the parties thereto and shall have been delivered to the Collateral
Agent and shall be in full force and effect on such date and each
document (including appropriate financing statements) (or evidence that
such document has been filed, registered or recorded, as applicable)
required by law or reasonably requested by the Administrative Agent to
be filed, registered or recorded in order to create in favor of the
Collateral Agent for the benefit of the Secured Parties a legal, valid
and perfected first-priority security interest in and Lien on Debts (as
defined in the Canadian General Assignment of Book Debts) (subject to
any Lien expressly permitted by Section 6.02) described in such
agreement shall have been delivered to the Collateral Agent. The
Collateral Agent shall have received the results of a search of the
personal property security legislation (or equivalent filings under
equivalent legislation) filings made with respect to the applicable
Loan Parties in the province in which the registered office of such
person is located or in which any offices of such persons in which
records have been kept relating to the Accounts (as defined in the
Security Agreement) disclosed by such search, and accompanied by
evidence satisfactory to the Collateral Agent that the Liens indicated
in any such financing statement (or similar document) would be
permitted under Section 6.02 or have been released. Each Hypothec shall
have been duly executed by the parties thereto, shall have been
delivered to the Collateral Agent and shall be in full force and effect
and each document required by law or reasonably requested by the
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Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the Secured
Parties a legal, valid and perfected first- priority hypothec in and
lien on the property forming part of the Charged Premises (subject to
any Lien expressly permitted by Section 6.02 and excluding filings,
registrations or recordations in any land title, land registry or
similar office) described in such Hypothec shall have been delivered to
the Collateral Agent.
(h) The Guarantee Agreements shall have been duly executed by
the parties thereto, shall have been delivered to the Collateral Agent
and shall be in full force and effect.
(i) The Indemnity, Subrogation and Contribution Agreement
shall have been duly executed by the parties thereto, shall have been
delivered to the Collateral Agent and shall be in full force and
effect.
(j) The Pledge Intercreditor Agreement shall have been duly
executed by the parties thereto, shall been delivered to the Collateral
Agent and shall be in full force and effect.
(k) The Collateral Agent shall have received the results of a
search of the Uniform Commercial Code (or equivalent filings) filings
made with respect to the Loan Parties in the states (or other United
States jurisdictions) in which the chief executive office of each such
person is located, any offices of such persons in which records have
been kept relating to Accounts and the other United States
jurisdictions in which Uniform Commercial Code filings (or equivalent
filings) are to be made pursuant to the preceding paragraph, together
with copies of the financing statements (or similar documents)
disclosed by such search, and accompanied by evidence satisfactory to
the Collateral Agent that the Liens indicated in any such financing
statement (or similar document) would be permitted under Section 6.02
or have been released.
(l) The Collateral Agent shall have received a Perfection
Schedule with respect to the Loan Parties located in the United States
and a Canadian Perfection Certificate with respect to the Loan Parties
located in Canada, in each case dated the Closing Date.
(m) The Administrative Agent shall have received a copy of, or
a certificate as to coverage under, the insurance policies required by
Section 5.02 and the applicable provisions of the Security Documents,
each of which shall be endorsed or otherwise amended to include a
"standard" or "New York" lender's loss payable endorsement and to name
the Collateral Agent as additional insured, in form and substance
satisfactory to the Administrative Agent.
(n) The Administrative Agent, the Syndication Agent and the
Documentation Agent shall have received an environmental assessment
report in form, scope and substance reasonably satisfactory to the
Lenders, from EMCON Corporation, as to environmental matters relating
to Allied, the Borrower and the Subsidiaries, and the Lenders shall be
reasonably satisfied with the nature and cost of any environmental
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hazards, liabilities or Remedial Action disclosed therein and with the
Borrower's plans with respect thereto.
(o) Substantially contemporaneously with the first Credit
Event, Allied shall have repaid in full the principal of all loans
outstanding, interest thereon and other amounts due and payable under
the Existing Credit Agreement and under each other agreement related
thereto, and the Administrative Agent shall have received duly executed
documentation either evidencing or necessary for (i) the termination of
the Existing Credit Agreement and each other agreement related thereto
(other than the Existing Letters of Credit and all applications and
reimbursement agreements related thereto), (ii) the cancellation of all
commitments thereunder and (iii) the termination of all related
agreements (other than the Existing Letters of Credit and all
applications and reimbursement agreements related thereto) and
guarantees and security interests granted by any Loan Party or any
Subsidiary or any other person in connection therewith and the
discharge of all obligations or interests thereunder.
(p) After giving effect to the Transactions, Allied, the
Borrower and the Subsidiaries shall have outstanding no Indebtedness or
preferred stock other than (i) the Loans hereunder, (ii) the
Indebtedness shown on Schedule 6.01 or otherwise permitted pursuant to
Section 6.01, (iii) the Senior Subordinated Notes, (iv) the Laidlaw
Debentures, (v) the Allied Canada Debentures and (vi) the preferred
stock (the "Preferred Stock") of the Borrower set forth on Schedule
4.02(p).
(q) There shall have been no material adverse change in the
business, assets, operations, properties, financial condition,
contingent liabilities, prospects or material agreements of Allied, the
Borrower and the Subsidiaries (other than the Laidlaw Subsidiaries),
taken as a whole, since December 31, 1995, or of the Laidlaw
Subsidiaries, taken as a whole, since August 31, 1996.
(r) The Acquisition shall have been consummated or shall be
consummated simultaneously with the first Credit Event in accordance
with applicable law, in accordance with the Stock Purchase Agreement
(without giving effect to any waiver of any material condition set
forth in the Stock Purchase Agreement not approved by the Lenders) and
on terms reasonably satisfactory to the Lenders and the consummation of
the Transactions shall not create a prepayment event under any
provision of any indenture or other agreement or instrument evidencing
Indebtedness, other than the Existing Credit Agreement. The aggregate
level of fees and expenses to be paid in connection with the
Transactions shall not exceed $70,000,000.
(s) The Indenture Trustee shall have delivered to the
Borrower, the net proceeds relating to the Senior Subordinated Notes in
accordance with the Collateral Agreement, which such proceeds were
delivered to the Indenture Trustee, pursuant to the Collateral
Agreement, following the issuance of the Senior Subordinated Notes. The
subordination provisions, covenants, events of default and remedies
with respect to the Senior Subordinated Notes shall be satisfactory in
all respects to the Lenders (it being understood and agreed that the
Senior Subordinated Notes shall not have a maturity date prior to the
tenth anniversary of the Closing Date and that the subordination
provisions,
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covenants, events of default and remedies contained in the Senior
Subordinated Notes as issued on December 5, 1996, are acceptable).
(t) Substantially contemporaneously with the first Credit
Event, the Collateral Agreement shall have been terminated and all
security interests thereunder in favor of the Indenture Trustee shall
have been cancelled and discharged.
(u) Allied shall have issued the Laidlaw Warrant to Laidlaw
and Allied Finance shall have issued the Laidlaw Debentures to Laidlaw
in exchange for the Allied Canada Debentures in each case prior to or
simultaneously with the first Credit Event in accordance with
applicable law, in accordance in all material respects with the Stock
Purchase Agreement or on other terms that are reasonably satisfactory
to the Lenders.
(v) The Lenders shall be satisfied that the consummation of
the Transactions will not (i) violate any applicable law, statute, rule
or regulation or (ii) conflict with, or result in a default or event of
default under, (A) any indenture relating to any existing Indebtedness
of any Loan Party or any subsidiary of any Loan Party that is not being
repaid, repurchased or redeemed in full on or prior to the Closing Date
in connection with the Transactions or any other indenture of any Loan
Party or any Subsidiary of any Loan Party to be in effect after the
Closing Date or (B) any other material agreement of any Loan Party or
any Subsidiary of any Loan Party.
(w) The Lenders shall have received a solvency letter, in form
and substance and from an independent evaluation firm satisfactory to
the Administrative Agent, the Syndication Agent and the Documentation
Agent.
(x) All governmental consents and approvals and all material
third party consents shall have been obtained with respect to the
Transactions and the other transactions contemplated hereby to the
extent required, all applicable appeal periods shall have expired and
there shall be no governmental or judicial action, actual or
threatened, that has or could have a reasonable likelihood of
restraining, preventing or imposing burdensome conditions on the
Transactions or the other transactions contemplated hereby, including
the making of the Loans hereunder, the issuance of the Senior
Subordinated Notes, the Laidlaw Warrant or the Laidlaw Debentures.
(y) The Lenders shall be satisfied with the corporate and
legal structure and capitalization of Allied, the Borrower and the
Subsidiaries after the consummation of the Transactions, including the
charter and bylaws of Allied and the Borrower and each agreement or
instrument relating thereto, and with any contractual arrangements with
respect to the management of Allied, the Borrower and the Laidlaw
Subsidiaries.
(z) There shall exist no action, suit, investigation,
litigation or proceeding pending or threatened in any court or before
any arbitrator or governmental instrumentality that (i) would be
reasonably likely to have a Material Adverse Effect or (ii) purports to
affect the Transactions or the other transactions contemplated hereby,
including the making of the Loans hereunder, the issuance of the Senior
Subordinated Notes, the Laidlaw Warrant or the Laidlaw Debentures.
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(aa) All capital stock of the Borrower and Allied Finance
shall be owned by Allied, and except as noted on Schedule 3.08, all of
the stock of Subsidiaries shall be owned by the Borrower or one or more
of the Borrower's Subsidiaries.
SECTION 4.03. Acquisition Loan Credit Events. On the date of
each Acquisition Borrowing all of the conditions precedent set forth in Section
4.01 shall have been satisfied and, in addition:
(a) After giving effect to the incurrence of such Acquisition
Borrowing and the application of the proceeds thereof to consummate the
related Permitted Acquisition, the Borrower (i) shall be in pro forma
compliance (based on historical financial statements, as adjusted for
identifiable cost savings and internalization of waste, in either case
in connection with such Permitted Acquisition) with the then applicable
ratio levels set forth in Sections 6.12, 6.13, 6.14 and 6.15 and (ii)
shall have delivered to the Administrative Agent, the Syndication Agent
and the Documentation Agent the certificate of a Financial Officer
certifying (x) such pro forma compliance and (y) that the applicable
pro forma calculations are based on reasonable assumptions and the best
information available as of the date such certificate is delivered and
have been prepared by the Borrower in good faith.
(b) The principal amount of such requested Acquisition Loan
plus the aggregate principal amount of all Acquisition Loans made
during the 365-day period immediately preceding the date of such
requested Acquisition Loan (the "Applicable Test Period") shall not
exceed the product of (i) the sum of (x) the Acquired Revenues of the
proposed Acquired Entity for the period of 12 consecutive fiscal months
immediately preceding the date of the proposed Acquisition Loan and (y)
the Acquired Revenues of each other Acquired Entity that was acquired
during the Applicable Test Period for the period of 12 consecutive
fiscal months immediately preceding the date of the acquisition of such
Acquired Entity and (ii) the Applicable EBITDA Margin, multiplied by
three.
(c) The Borrower shall have delivered to the Administrative
Agent, the Syndication Agent and the Documentation Agent at least three
Business Days prior to any such Acquisition Borrowing, a certificate of
a Financial Officer setting forth computations in reasonable detail
satisfactory to the Administrative Agent, the Syndication Agent and the
Documentation Agent demonstrating satisfaction of the conditions set
forth in paragraphs (a) and (b) of this Section 4.03.
ARTICLE V
Affirmative Covenants
Each of Allied and the Borrower covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document shall have
been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full, unless the
Required
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Lenders shall otherwise consent in writing, each of Allied and the Borrower
will, and will cause each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.06, except that, after notice to and consultation with the
Administrative Agent, the Documentation Agent and the Syndication Agent, any
Subsidiary may terminate its existence.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
in all material respects with all applicable laws, rules, regulations and
decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted; and at all times maintain and preserve all property material
to the conduct of such business and keep such property in good repair, working
order and condition and from time to time make, or cause to be made, all needful
and proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times.
SECTION 5.02. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses operating in the same or similar locations,
including public liability insurance against claims for personal injury or death
or property damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) Cause all such policies to be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in form
and substance satisfactory to the Administrative Agent and the Collateral Agent,
which endorsement shall provide that, from and after the Closing Date, if the
insurance carrier shall have received written notice from the Administrative
Agent or the Collateral Agent of the occurrence of an Event of Default, the
insurance carrier shall pay all proceeds otherwise payable to the Borrower or
the Loan Parties under such policies directly to the Collateral Agent; cause all
such policies to provide that neither the Borrower, the Administrative Agent,
the Collateral Agent nor any other party shall be a coinsurer thereunder and to
contain a "Replacement Cost Endorsement", without any deduction for
depreciation, and such other provisions as the Administrative Agent or the
Collateral Agent may reasonably require from time to time to protect their
interests; deliver original or certified copies of all such policies to the
Collateral Agent; cause each such policy to provide that it shall not be
canceled, modified or not renewed (i) by reason of nonpayment of premium upon
not less than 10 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent (giving the Administrative Agent
and the Collateral Agent the right to cure defaults in the payment of premiums)
or (ii) for any other reason upon not less than 30 days' prior written notice
thereof by the insurer to the Administrative Agent and the Collateral Agent;
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deliver to the Administrative Agent and the Collateral Agent, prior to the
cancellation, modification or nonrenewal of any such policy of insurance, a copy
of a renewal or replacement policy (or other evidence of renewal of a policy
previously delivered to the Administrative Agent and the Collateral Agent)
together with evidence satisfactory to the Administrative Agent and the
Collateral Agent of payment of the premium therefor.
(c) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained under this Section 5.02
is taken out by the Borrower; and promptly deliver to the Administrative Agent
and the Collateral Agent a duplicate original copy of such policy or policies.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 95 days after the end of each fiscal year, its
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows showing the financial condition of
the Borrower and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of
such Subsidiaries during such year, all audited by Arthur Andersen LLP
or other independent public accountants of recognized national standing
acceptable to the Administrative Agent and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect)
to the effect that such consolidated financial statements fairly
present the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied and annual consolidating
income statements for the Borrower and its operating districts;
(b) within 50 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows
showing the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of
its operations and the operations of such Subsidiaries during such
fiscal quarter and the then elapsed portion of the fiscal year, all
certified by one of its Financial Officers as fairly presenting the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently
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applied, subject to normal year-end audit adjustments and quarterly
consolidating income statements for the Borrower and its operating
districts;
(c) concurrently with any delivery of financial statements
under sub-paragraph (a) or (b) above, a certificate of the accounting
firm or Financial Officer opining on or certifying such statements
(which certificate, when furnished by an accounting firm, may be
limited to accounting matters and disclaim responsibility for legal
interpretations) (i) certifying that in making its examination in
connection with rendering such opinion or certificate with respect to
such statements, such person has not obtained knowledge that an Event
of Default or Default has occurred or, if such Financial Officer has
obtained knowledge that an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto, (ii) setting forth
computations in reasonable detail satisfactory to the Administrative
Agent, the Syndication Agent and the Documentation Agent demonstrating
compliance with the covenants contained in Section 6.01, 6.02, 6.04,
6.05, 6.11, 6.12, 6.13, 6.14 and 6.15 and (iii) setting forth any
change in the Applicable Percentage;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by Allied, the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the case
may be;
(e) as soon as available but in any event not later than 50
days after the end of each fiscal quarter, a report in form and
substance satisfactory to the Administrative Agent, the Syndication
Agent and the Documentation Agent of all Permitted Acquisitions
consummated during such quarter with total consideration of $3,000,000
or more, which report shall include a description of the total
consideration by acquisition (including a breakdown of Indebtedness
permitted under Section 6.01(e), Acquired Indebtedness and contingent
payments);
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
Allied, the Borrower or any Subsidiary, or compliance with the terms of
any Loan Document, as the Administrative Agent, the Syndication Agent
and the Documentation Agent or any Lender may reasonably request;
(g) within fifteen days after the beginning of each fiscal
year, a copy of the annual business plan of the Borrower and the
Subsidiaries and forecasts, prepared by management of the Borrower, in
each case in form and detail satisfactory to the Administrative Agent,
the Syndication Agent and the Documentation Agent, of the Borrower's
consolidated balance sheets and related statements of operations and
cash flows on a monthly basis for such fiscal year and on an annual
basis for each of the following fiscal years remaining during the term
of this Agreement; and
(h) concurrently with the delivery of the financial statements
under sub-paragraph (a) above, a schedule of all real property then
owned by Allied, the Borrower or the Subsidiaries, which schedule shall
include, in detail satisfactory to the Administrative
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Agent, the location of, description of, fair market or assessed value
of and any Liens securing Indebtedness on, each such owned real
property.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written notice of
the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect; and
(c) any development that has resulted in, or could reasonably
be expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (i) as soon as possible after, and in any event within 10
days after any Responsible Officer of the Borrower or any ERISA Affiliate knows
or has reason to know that, any ERISA Event has occurred that, alone or together
with any other ERISA Event could reasonably be expected to result in liability
of the Borrower in an aggregate amount exceeding $5,000,000 or (ii) requiring
payments exceeding $2,500,000 in any year, a statement of a Financial Officer of
the Borrower setting forth details as to such ERISA Event and the action, if
any, that the Borrower proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made of
all dealings and transactions in relation to its business and activities. Each
Loan Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect the financial records and the properties of Allied, the Borrower or
any Subsidiary at reasonable times and as often as reasonably requested and to
make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of Allied, the Borrower or any Subsidiary
with the officers thereof and independent accountants therefor. Without limiting
the foregoing, the Administrative Agent and its representatives may inspect, and
may cause an environmental assessment to be made of, any real property owned or
leased by Allied, the Borrower or any Subsidiary with a view toward securing the
Obligations by a Lien on such property pursuant to Section 5.11, in each case at
the Borrower's sole cost and expense (not to exceed $100,000 in any fiscal
year).
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
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SECTION 5.09. Environmental Laws. (a) Comply, and cause all lessees and
other persons occupying its Properties to comply, in all respects with all
Environmental Laws and Environmental Permits applicable to its operations and
Properties; obtain and renew all Environmental Permits necessary for its
operations and Properties; and conduct any Remedial Action in accordance with
Environmental Laws, except where such non-compliance or failure to obtain or
renew Environmental Permits or to conduct any Remedial Action could not
reasonably be expected to result in a Material Adverse Effect; provided,
however, that none of Allied, the Borrower or any of the Subsidiaries shall be
required to undertake any Remedial Action to the extent that any applicable
obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such
circumstances.
(b) With respect to any Permitted Acquisition and any acquisition of
any other ownership or leasehold interest in, or the entry into any agreement to
conduct operations of, any landfill, transfer station or other waste treatment
or disposal facility: (i) prior to consummating any such acquisition or
commencement of any operations under any such agreement or lease, obtain and
review a favorable written assessment, prepared by an environmental consulting
firm recognized within the municipal solid waste industry and among
environmental professionals as competent and reputable and which the Borrower
has reasonably determined to be suitable, that reasonably addresses the
environmental compliance and liability issues associated with the subject of
such acquisition, agreement or lease (an "Environmental Assessment"); and (ii)
furnish such Environmental Assessment to the Administrative Agent promptly
following such acquisition or the commencement of any operations under such an
agreement or lease with respect to a Permitted Acquisition, the total
consideration of which is greater than $5,000,000.
SECTION 5.10. Preparation of Environmental Reports. If a Default caused
by reason of a breach of Section 3.17 or 5.09 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 45 days after such request, at the expense
of the Borrower, an environmental site assessment report for the Properties
which are the subject of such default prepared by an environmental consulting
firm acceptable to the Administrative Agent, the Syndication Agent and the
Documentation Agent and indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance or Remedial Action in
connection with such Properties.
SECTION 5.11. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent, the Syndication
Agent, the Documentation Agent or the Collateral Agent may reasonably request,
in order to effectuate the transactions contemplated by the Loan Documents and
in order to grant, preserve, protect and perfect the validity and first priority
of the security interests created or intended to be created by the Security
Documents. Allied and the Borrower will cause any subsequently acquired or
organized Subsidiary (other than a Subsidiary that conducts no operations, has
total assets not in excess of $5,000 and has no Indebtedness) to execute a
Subsidiary Guarantee Agreement, Indemnity Subrogation and Contribution Agreement
and each applicable Security Document in favor of the Collateral Agent, except
to the extent any such execution by a Foreign Subsidiary would have any adverse
tax consequences for the Borrower or any of the Subsidiaries. In addition, from
time to time, Allied and the Borrower will, at their
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own cost and expense, promptly secure the Obligations by pledging or creating,
or causing to be pledged or created, perfected security interests with respect
to such of its assets and properties (including real property) as the
Administrative Agent or the Required Lenders shall designate (it being
understood that it is the intent of the parties that the Obligations shall be
secured by, among other things, substantially all the assets of Allied and the
Borrower (including real and other properties acquired subsequent to the Closing
Date)). Such security interests and Liens will be created under the Security
Documents and other security agreements, mortgages, deeds of trust and other
instruments and documents in form and substance satisfactory to the Collateral
Agent, and Allied and the Borrower shall deliver or cause to be delivered to the
Collateral Agent all such instruments and documents (including legal opinions,
title insurance policies and lien searches) as the Collateral Agent shall
reasonably request to evidence compliance with this Section. Allied and the
Borrower agree to provide such evidence as the Collateral Agent shall reasonably
request as to the perfection and priority status of each such security interest
and Lien.
SECTION 5.12. Compliance with Terms of Leaseholds. Make all payments
and otherwise perform all obligations in respect of all leases of real property
to which Allied, the Borrower or any of the Subsidiaries is a party, keep such
leases in full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or cancelled,
notify the Administrative Agent of any default by any party with respect to such
leases and cooperate with the Administrative Agent in all respects to cure any
such default, and cause each of the Subsidiaries to do so, except, in any case,
where the failure to do so, either individually or in the aggregate, could not
be reasonably expected to have a Material Adverse Effect.
SECTION 5.13. Performance of Material Agreements. Perform and observe
all of the terms and provisions of the Stock Purchase Agreement and ancillary
agreements related thereto and each agreement that is material to the conduct of
the Borrower's and the Subsidiaries' business to be performed or observed by it
(collectively, the "Material Agreements"), maintain each such Material Agreement
in full force and effect, enforce such Material Agreement in accordance with its
terms, take all action to such end as may be from time to time requested by the
Administrative Agent and, upon request of the Administrative Agent, make to each
other party to each such Material Agreement such demands and requests for
information and reports or for action as Allied or the Borrower is entitled to
make under such Material Agreement, and cause each of the Subsidiaries to do so,
except, in any case, where the failure to do so, either individually or in the
aggregate, could not be reasonably expected to have a Material Adverse Effect.
SECTION 5.14. Interest Rate Protection Agreements. As promptly as
practicable and in any event within 90 days after the Closing Date, enter into,
and thereafter maintain in full force and effect through the third anniversary
of the Closing Date, one or more Interest Rate Protection Agreements in form
reasonably satisfactory to the Administrative Agent, the Syndication Agent and
the Documentation Agent, the effect of which shall be to set at fixed rates the
interest cost to the Borrower and its Subsidiaries with respect to at least 50%
of the aggregate outstanding principal amount of Term Loans and AXELs Loans and
deliver evidence of the execution and delivery thereof to the Administrative
Agent, the Syndication Agent and the Documentation Agent.
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SECTION 5.15. Senior Convertible Debentures. Prior to the end of each
fiscal year, commencing with the fiscal year ending on December 31, 1997, the
Borrower shall deliver to the Administrative Agent evidence reasonably
satisfactory to the Administrative Agent that the Borrower will be in compliance
with the financial covenants of the Senior Convertible Debentures (including
compliance as a result of a waiver or amendment of the terms thereof), provided
that the Borrower shall not be obligated to deliver such evidence if prior to
any such fiscal year-end, the Borrower shall have prepaid all Senior Convertible
Debentures not converted prior to such prepayment, in each case in accordance
with the terms thereof.
SECTION 5.16. Concentration and Disbursement Accounts. (a) Except to
the extent permitted by paragraph (b) below, the Borrower shall maintain with a
financial institution that is a Lender one or more accounts to be used by the
Borrower as its principal concentration and disbursement accounts and will not,
and will not permit any Subsidiary to, maintain more than an aggregate of
$1,000,000 for more than two Business Days in bank accounts with any person that
is not a Lender.
(b) Notwithstanding the foregoing, paragraph (a) shall not apply to any
accounts of the Laidlaw Subsidiaries; provided, however, that with respect to
the accounts of the Laidlaw Subsidiaries that are Domestic Subsidiaries, (a) the
Borrower shall use its best efforts to be in compliance with paragraph (a)
within 180 days after the Closing Date and shall be in compliance with paragraph
(a) within 360 days after the Closing Date. The Borrower and the Subsidiaries
shall be deemed to be in compliance with this Section 5.16 at any time that a
lockbox arrangement in accordance with Section 4.09(b) of the Security Agreement
is in effect.
ARTICLE VI
Negative Covenants
Each of Allied and the Borrower covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been cancelled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, neither Allied nor the Borrower
will, nor will they cause or permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date
hereof and set forth on Schedule 6.01(a);
(b) Indebtedness created hereunder and under the other Loan
Documents; provided, however, that at no time shall the aggregate
principal amount of outstanding Swingline Loans and Revolving Loans
(other than Revolving Loans deemed made pursuant to Section 2.02(f))
exceed $200,000,000;
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(c) in the case of the Borrower, Indebtedness under the
Interest Rate Protection Agreements entered into in accordance with
Section 5.14;
(d) Indebtedness of a Subsidiary acquired after the date
hereof and Indebtedness of a corporation merged or consolidated with or
into the Borrower or a Subsidiary after the date hereof ("Acquired
Indebtedness"), which Indebtedness in each case exists at the time of
such acquisition, merger, consolidation or conversion into a Subsidiary
and is not created in contemplation of such event and where such
acquisition, merger or consolidation is permitted by this Agreement,
provided that the Borrower and the Subsidiaries comply with the
provisions of Section 5.11 with respect to such acquired or newly
formed Subsidiary;
(e) Indebtedness of Allied, the Borrower or any Subsidiary
that is issued to a seller of an Acquired Entity and incurred in
connection with a Permitted Acquisition, provided that the aggregate
principal amount of Indebtedness incurred pursuant to this paragraph
(e) shall not exceed (i) $7,500,000 with respect to any Permitted
Acquisition and (ii) $50,000,000 at any time outstanding;
(f) Guarantees in respect of Indebtedness permitted pursuant
to this Section 6.01, provided that any Guarantees in respect of
Indebtedness that are subordinated to the Obligations shall also be
subordinated to the Guarantees in favor of the Lenders under the Loan
Documents and to the Obligations to the same extent as such
Indebtedness is subordinated to the Obligations;
(g) Indebtedness of the Borrower or any wholly owned
Subsidiary to any other wholly owned Subsidiary or the Borrower, so
long as such Indebtedness is subordinated to all Indebtedness incurred
pursuant hereto and pursuant to the Guarantee Agreements;
(h) Indebtedness (i) of Allied to the Borrower or any wholly
owned Subsidiary, so long as the proceeds of such Indebtedness are used
by Allied solely for purposes permitted under Section 6.09, or (ii) of
the Borrower or any wholly owned Subsidiary to Allied;
(i) the Senior Subordinated Notes and Guarantees thereof, all
in accordance with the Indenture dated as of December 1, 1996,
governing the Senior Subordinated Notes;
(j) Indebtedness of the Borrower or the Subsidiaries
(including tax exempt financings and Capital Lease Obligations) to
purchase, construct, develop or improve assets in the ordinary course
of business after the Closing Date incurred in the ordinary course of
business after the Closing Date to finance Capital Expenditures
permitted under Section 6.11, provided that the aggregate principal
amount of any Indebtedness incurred pursuant to this paragraph (j)
outstanding at any time shall not exceed (i) at any time that the
Leverage Ratio as of the last fiscal quarter for which financial
statements have been delivered pursuant to Section 5.04(a) or (b) is
greater than or equal to 4.00 to 1.00 (after giving pro forma effect to
each proposed incurrence of Indebtedness under this paragraph (j)), 5%
of the consolidated net fixed assets of Allied, the Borrower and the
Subsidiaries
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as of such time and (ii) at any time that such Leverage Ratio is less
than 4.00 to 1.00 (after giving pro forma effect to each proposed
incurrence of Indebtedness under this paragraph (j)), 10% of the
consolidated net fixed assets of Allied, the Borrower and the
Subsidiaries as of such time;
(k) Indebtedness incurred pursuant to any sale and leaseback
transaction permitted by Section 6.04;
(l) Junior Exchange Indebtedness;
(m) the Laidlaw Debentures and the Allied Canada Debentures;
(n) the Laidlaw Acquired Indebtedness;
(o) extensions, renewals or refinancings of Indebtedness under
paragraphs (a) and (d) so long as (i) such Indebtedness ("Refinancing
Indebtedness") is in an aggregate principal amount not greater than the
aggregate principal amount of the Indebtedness being extended, renewed
or refinanced plus the amount of any premiums required to be paid
thereon and fees and expenses associated therewith, (ii) such
Refinancing Indebtedness has a later or equal final maturity and a
longer or equal weighted average life than the Indebtedness being
extended, renewed or refinanced, (iii) the interest rate applicable to
such Refinancing Indebtedness shall be a market interest rate (as
determined in good faith by the Board of Directors of the Borrower) as
of the time of such extension, renewal or refinancing, (iv) if the
Indebtedness being extended, renewed or refinanced is subordinated to
the Obligations, such Refinancing Indebtedness is subordinated to the
Obligations to the extent of the Indebtedness being extended, renewed
or refinanced, (v) the covenants, events of default and other
provisions thereof (including any Guarantees thereof), taken as a
whole, shall be no less favorable to the Lenders than those contained
in the Indebtedness being refinanced and (vi) at the time and after
giving effect to such extension, renewal or refinancing, no Default or
Event of Default shall have occurred and be continuing; and
(p) unsecured Indebtedness in addition to that permitted by
paragraphs (a) through (o) above in an aggregate principal amount not
to exceed (i) at any time that the Leverage Ratio as of the last fiscal
quarter for which financial statements are available is greater than or
equal to 4.00 to 1.00 (after giving pro forma effect to each proposed
incurrence of Indebtedness under this paragraph (p)), $25,000,000 and
(ii) at any time that such Leverage Ratio is less than 4.00 to 1.00
(after giving pro forma effect to each proposed incurrence of
Indebtedness under this paragraph (p)), $75,000,000.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned
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or hereafter acquired by it or on any income or revenues or rights in respect of
any thereof, except:
(a) Liens on property or assets of Allied, the Borrower and
the Subsidiaries existing on the date hereof and set forth in Schedule
6.02(a); provided that such Liens shall secure only those obligations
which they secure on the date hereof;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition and (ii) such Lien does not apply to any other
property or assets of the Borrower or any Subsidiary (other than
proceeds of the property or asset subject to the Lien);
(d) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due and payable or which
are being contested in compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(g) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(i) purchase money security interests in real property,
improvements thereto equipment or other fixed assets hereafter acquired
(or, in the case of improvements, equipment or other fixed assets,
constructed) by the Borrower or any Subsidiary; provided that (i) such
security interests secure Indebtedness permitted by Section 6.01, (ii)
such security interests are incurred, and the Indebtedness secured
thereby is created, within 90 days after such acquisition (or
completion of such construction), (iii) the Indebtedness secured
thereby does not exceed 100% of the cost of such real property,
improvements or equipment at the time of such acquisition (or
construction) and (iv) such security interests do not apply to any
other property or assets of the Borrower or any
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Subsidiary (other than the proceeds of the real property, improvements,
equipment or other fixed assets subject to the Lien);
(j) Liens securing Refinancing Indebtedness, to the extent
that the Indebtedness being refinanced was originally secured in
accordance with this Section 6.02, provided that such Lien does not
apply to any additional property or assets of Allied, the Borrower or
any Subsidiary (other than the proceeds of the property or asset
subject to the Lien);
(k) Liens arising out of Capitalized Lease Obligations
permitted under Section 6.01(j), so long as such Liens (i) attach only
to the property subject to such capitalized lease and (ii) do not
interfere with the business of the Borrower or any of the Subsidiaries
in any material respect;
(l) Liens arising out of judgments or awards (other than any
judgment that is described in clause (i) of Article VII which
constitutes an Event of Default thereunder) in respect of which the
Borrower shall in good faith be prosecuting an appeal or proceedings
for review and in respect of which it shall have secured a subsisting
stay of execution pending such appeal or proceedings for review,
provided the Borrower shall have set aside on its books adequate
reserves, in accordance with GAAP, with respect to such judgment or
award; and
(m) any Lien on the property or assets of an Acquired Entity
or the stock of an Acquired Entity securing Indebtedness permitted by
Section 6.01(e).
SECTION 6.03. No Other Negative Pledge. Enter into any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any of
its property or assets other than (i) in favor of the Secured Parties, (ii) in
favor of the holders of the Senior Subordinated Notes or any trustee for such
holders, (iii) in connection with Indebtedness that may be secured by a Lien in
compliance with Section 6.02(a), (c), (j) or (m), provided that such prohibition
or condition does not apply to any property or assets of Allied, the Borrower or
the Subsidiaries not subject to such Lien or (iv) in connection with any lease
permitted under Section 6.03 solely to the extent that such lease prohibits a
Lien on the lease or the property subject to such lease.
SECTION 6.04. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred; provided that the Borrower
may enter into any such transaction with respect to any lease that is required
to be capitalized in accordance with GAAP, and in compliance with Section
6.02(k), so long as the aggregate principal amount of Capital Lease Obligations
associated therewith does not exceed $25,000,000 at any time outstanding.
SECTION 6.05. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or
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advances to, or make or permit to exist any investment or any other interest in,
any other person, except:
(a) investments by Allied and the Borrower (i) existing on the
date hereof in the capital stock of the Subsidiaries (including
investments made in connection with the Acquisition) and (ii) after the
date hereof in the capital stock of the Guarantors;
(b) Permitted Investments;
(c) loans and advances to employees of Allied, the Borrower or
its Subsidiaries for travel, entertainment and relocation expenses in
the ordinary course of business for Allied, the Borrower and its
Subsidiaries;
(d) loans by Allied, the Borrower or any Subsidiary to its
employees in connection with management incentive plans not to exceed
$5,000,000 at any time outstanding; provided, however, that such
limitation shall not apply to loans the proceeds of which are used to
purchase common stock of Allied so long as Allied uses the proceeds
thereof to acquire common stock of the Borrower;
(e) investments constituting Capital Expenditures permitted
under Section 6.11;
(f) loans or advances by the Borrower or any wholly owned
Subsidiary to the Borrower or any wholly owned Subsidiary that are
permitted under Section 6.01(g);
(g) loans or advances by the Borrower or any wholly owned
Subsidiary to Allied or by Allied to the Borrower or any wholly owned
Subsidiary that are permitted by Section 6.01(h);
(h) the capital stock or other ownership interests of any
Subsidiary formed after the date hereof by the Borrower, provided that
(i) such capital stock or interest is pledged to the Collateral Agent
(for the benefit of the Lenders) pursuant to the Pledge Agreement and
(ii) the Borrower and such Subsidiary comply with the applicable
provisions of Section 5.11 with respect to such newly formed
Subsidiary;
(i) Interest Rate Protection Agreements permitted under
Section 6.01(c); and
(j) one or more non-hostile acquisitions by the Borrower or
any Subsidiary after the Closing Date in which the Borrower or any
Subsidiary is the surviving entity of a business unit (with any
associated assets) located in the United States or Canada or capital
stock or other equity interests (other than Margin Stock) of any other
person organized under the laws of (x) the United States, any State
thereof or the District of Columbia or (y) Canada or any political
subdivision thereof (such assets, in the case of an asset acquisition,
or person, in the case of the acquisition of capital stock or other
equity interests, is referred to herein as the "Acquired Entity") so
long as (i) in the case of an acquisition of assets, such assets are to
be used, and in the case of an acquisition of capital stock or other
equity interests, the person so acquired is engaged in, the same line
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of business as the Borrower and the Subsidiaries and other business
activities incidental thereto, (ii) the Acquired Entity conducts its
business exclusively in the United States and/or Canada, (iii)
immediately prior to and after giving effect to such acquisition, no
Default or Event of Default shall exist, (iv) the Borrower shall be in
compliance, on a pro forma basis after giving effect to such
acquisition, with the covenants contained in Sections 6.12, 6.13, 6.14
and 6.15 recomputed as at the last day of the most recently ended
fiscal quarter of the Borrower as if such acquisition had occurred on
the first day of each relevant period for testing such compliance, (v)
promptly after any such acquisition, the Collateral Agent for the
benefit of the Secured Parties shall be granted a first priority
security interest in all personal property (including capital stock and
other securities or interests, but subject to Liens permitted by
Sections 6.02(c), 6.02(j) and 6.02(m) and other customary and
reasonable permitted encumbrances), except as otherwise provided by the
Security Agreement, acquired by the Borrower as part of such
acquisition, and the Borrower shall, and shall cause any applicable
Subsidiary to, execute any documents (including supplements to the
Subsidiary Guarantee Agreement, Security Agreement and Indemnity,
Subrogation and Contribution Agreement, Canadian Security Documents, if
applicable), financing statements, agreements and instruments, and take
all action (including filing financing statements and obtaining and
providing consents and legal opinions) that may be required under
applicable law, or that the Collateral Agent may request, in order to
grant, preserve, protect and perfect such security interests and (vi)
in the case of an acquisition of capital stock or other equity
interests of a person, the Borrower acquires a majority of the capital
stock or other equity interests of such person,
provided, however, that (x) if the consideration (including assumption of
indebtedness and other contingent payments other than waste disposal-based
royalties, Acquired Indebtedness and Indebtedness issued pursuant Section
6.01(e) but excluding capital stock issued by Allied) in any such acquisition
exceeds $25,000,000, the prior written consent of the Administrative Agent, the
Syndication Agent, the Documentation Agent and the Required Lenders shall be
required with respect to such acquisition and (y) if the proceeds of a Revolving
Credit Loan are to be used to pay any portion of the consideration for such
acquisition, or to refinance any indebtedness or pay any fees, expenses or other
amounts in connection therewith, such Revolving Credit Loan shall be treated as
an Acquisition Loan and all the provisions in this Agreement relating to the
making of the Acquisition Loans, including Section 4.03, shall be satisfied. Any
acquisition satisfying each of the criteria set forth in the preceding sentence
is referred to herein as a "Permitted Acquisition"; and
(k) investments in joint ventures engaged in the same line of
business as the Borrower and the Subsidiary or other business
activities incidental thereto in an aggregate amount of not to exceed
$10,000,000.
SECTION 6.06. Mergers, Consolidations, Sales of Assets and
Acquisitions. Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or conduct any Asset Sale of
(in one transaction or in a series of transactions) all or any substantial part
of its assets (whether now owned or hereafter acquired), or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other person, except that:
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(a) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be
continuing (i) any wholly owned Subsidiary may merge into the Borrower
in a transaction in which the Borrower is the surviving corporation and
(ii) any Subsidiary (other than Allied Finance) may merge into or
consolidate with any other Subsidiary in a transaction in which the
surviving entity is a wholly owned Subsidiary and no person other than
the Borrower or a wholly owned Subsidiary receives any consideration;
(b) Allied, the Borrower and the Subsidiaries party to the
Stock Purchase Agreement may consummate the Acquisition;
(c) the Borrower or any Subsidiary (other than Allied Finance)
may make Permitted Acquisitions; and
(d) the Borrower or any Subsidiary (other than Allied Finance)
may conduct an Asset Sale of a type not described in this Section 6.06,
provided that the Net Cash Proceeds of such Asset Sale shall be applied
in the manner set forth under Section 2.13;
provided, further, that any sale, transfer or other disposition of assets or
stock with a fair market value in excess of $5,000,000 and not otherwise
prohibited by this Section 6.06 shall not be permitted unless (A) such sale,
transfer or other disposition is for consideration at least 75% of which is cash
and (B) such consideration is at least equal to the fair market value of the
assets, transferred or disposed of (as determined in good faith by the board of
directors or officers of the Borrower).
SECTION 6.07. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any shares of its capital stock or directly or indirectly redeem, purchase,
retire or otherwise acquire for value (or permit any Subsidiary to purchase or
acquire) any shares of any class of its capital stock or set aside any amount
for any such purpose; provided, however, that (i) any Subsidiary may declare and
pay dividends or make other distributions to the Borrower, (ii) Allied, the
Borrower or any Subsidiary may declare and pay dividends solely in shares of its
common stock; (iii) Allied may issue Junior Exchange Indebtedness in exchange
for Designated Preferred Stock; (iv) the Borrower may declare and pay dividends
to Allied solely to the extent necessary for Allied to conduct its business in
accordance with Section 6.09; and (v) so long as no Default or Event of Default
shall have occurred and be continuing, (A) Allied may declare and pay any cash
dividend on any shares of Preferred Stock outstanding on the Closing Date in an
amount not to exceed the stated dividend rate on the Closing Date on such
Preferred Stock (which payments in the aggregate shall not exceed $1,100,000 for
the fiscal year ending December 31, 1996 and $700,000 for each fiscal year
thereafter) and (B) may call for redemption any convertible preferred stock if
the conversion price for such preferred stock is no greater than 80% of the then
market price of the stock into which such preferred stock is redeemable and may
redeem any such shares not converted prior to the applicable date of redemption.
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(b) Permit its subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such subsidiary to (i) pay any dividends or
make any other distributions on its capital stock or any other interest or (ii)
make or repay any loans or advances to the Borrower or the parent of such
subsidiary, except for restrictions under the Senior Subordinated Notes but only
to the extent such restriction restricts dividend payments to Allied by the
Borrower or any Subsidiary.
SECTION 6.08. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
(a) with Allied, the Borrower or any wholly owned Subsidiary or (b) that Allied,
the Borrower or any Subsidiary may (i) engage in any of the foregoing
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties and (ii)
consummate or enter into, as the case may be, the agreements relating to the
Transactions.
SECTION 6.09. Business of Allied, Borrower, Allied Finance and
Subsidiaries. (a) Engage at any time, (i) in the case of the Borrower and each
of its Subsidiaries, in any business or business activity other than the
business currently conducted by them and business activities reasonably
incidental thereto, (ii) in the case of Allied, in any business or business
activity other than the ownership of all the outstanding stock of the Borrower
and Allied Finance and all activities reasonably incidental thereto and (iii) in
the case of Allied Finance, in any business or business activity other than
being the obligor under the Laidlaw Debentures and all activities reasonably
incidental thereto (it being understood that Allied Finance shall have no assets
other than the Allied Canada Debentures).
(b) enter into any general partnership arrangement other than through a
special purpose wholly owned Subsidiary, provided that any investments
associated with such general partnership shall be permitted hereunder.
SECTION 6.10. Other Indebtedness and Agreements. (a) Permit any waiver,
supplement, modification, amendment, termination or release of (i) any Material
Agreement or (ii) any indenture, instrument or agreement pursuant to which any
Indebtedness or preferred stock of Allied, the Borrower or any Subsidiary is
outstanding in an aggregate outstanding principal amount in excess of
$10,000,000, or modify its charter or by-laws, in each case to the extent that
any such waiver, supplement, modification, amendment, termination or release
would be adverse to the Lenders in any material respect.
(b) (i) Make any distribution, whether in cash, property, securities or
a combination thereof, other than scheduled (or with respect to senior
indebtedness held by a person that is not an Affiliate of the obligor,
mandatory) payments of principal and interest as and when due (to the extent not
prohibited by applicable subordination provisions), in respect of, or pay, or
offer or commit to pay, or directly or indirectly redeem, repurchase, retire or
otherwise acquire for consideration, or set apart any sum for the aforesaid
purposes, any Indebtedness for borrowed money (other than Indebtedness permitted
under Section 6.01(a), (d), (e) or (o) and intercompany Indebtedness permitted
under Section 6.01(g)) of any Loan Party or any Subsidiary in an outstanding
principal amount exceeding $5,000,000, except for (x) the refinancing of the
Existing
<PAGE> 95
89
Credit Agreement, (y) refinancings permitted by Section 6.01(p) and (z) the
Loans, (ii) make any payment or prepayment of any such Indebtedness that would
violate the terms of this Agreement or of such Indebtedness, any agreement or
document evidencing, related to or securing the payment or performance of such
Indebtedness or any subordination agreement or provision applicable to such
Indebtedness or (iii) pay in cash any amount in respect of such Indebtedness
that may at the applicable Loan Party's or Subsidiary's option be paid in kind
or in other securities.
(c) Notwithstanding anything contained in this Section 6.10 to the
contrary,
(i) the Borrower shall be permitted to exchange the Senior
Subordinated Notes for substantially identical notes in accordance with
the Exchange and Registration Rights Agreement dated as of December 5,
1996, relating to the Senior Subordinated Notes;
(ii) (A) prior to the third anniversary of the Closing Date,
Allied Finance shall be permitted to pay interest on the Laidlaw Junior
Debentures solely in the form of common stock of Allied and (B)
following the third anniversary of the Closing Date, but not prior to
15 days after delivery of the financial statements pursuant to Section
5.04(a) for the fiscal year ending immediately prior to such third
anniversary of the Closing Date and for each fiscal year thereafter,
Allied Finance shall be permitted to pay cash interest on the Laidlaw
Junior Debentures in an amount equal to the portion of Excess Cash Flow
for such applicable fiscal year that is not required to be used to
prepay outstanding Term Loans pursuant to Section 2.13(e); provided,
however, that (i) upon the first such payment of cash interest, the
Laidlaw Junior Debentures shall be included in the definition of "Total
Debt" hereunder and (ii) upon each such payment of cash interest, the
interest rate applicable to all Loans pursuant to Section 2.06 shall
automatically increase by .25% per annum.
SECTION 6.11. Capital Expenditures. Permit the aggregate amount of
Capital Expenditures made by Allied, the Borrower and the Subsidiaries, taken as
a whole, in any fiscal year to exceed the amount of Permitted Capital
Expenditures for such fiscal year; provided, however, that (a) the applicable
Base Amount of Permitted Capital Expenditures as set forth in the definition
thereof in any fiscal year ending after December 31, 1997, shall be increased by
the excess, if any, of the Base Amount for the immediately preceding year
(without giving effect to this proviso) over the total amount of Capital
Expenditures made during such immediately preceding year, and (b) in any fiscal
year, the applicable Base Amount as set forth in the definition of Permitted
Capital Expenditure may be increased, at the option of the Borrower, by up to
15% of the applicable Base Amount for the immediately following fiscal year,
provided that to the extent the Borrower so increases the Base Amount in any
such fiscal year, the applicable Base Amount in the immediately following fiscal
year shall be decreased by the amount of such increase.
<PAGE> 96
90
SECTION 6.12. Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio as of the end of any fiscal quarter falling in any period set
forth below to be less than the ratio set forth below for such period.
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
From and including March 31, 1997
through and including December 31, 1997 1.25 to 1.00
From and including March 31, 1998
through and including December 31, 1998 1.30 to 1.00
From and including March 31, 1999
through and including December 31, 1999 1.35 to 1.00
From and including March 31, 2000
through and including December 31, 2002 1.40 to 1.00
From and including March 31, 2003
through and including December 31, 2003 1.50 to 1.00
From and including March 31, 2004
through and including December 31, 2004 1.60 to 1.00
Thereafter 1.75 to 1.00
</TABLE>
SECTION 6.13. Leverage Ratio. Permit the Leverage Ratio as of the end
of any fiscal quarter falling in any period set forth below to be in excess of
the ratio set forth below for such period.
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
From and including March 31, 1997
through and including June 30, 1997 5.25 to 1.00
From and including September 30, 1997
through and including December 31, 1997 5.00 to 1.00
From and including March 31, 1998
through and including December 31, 1998 4.50 to 1.00
From and including March 31, 1999
through and including December 31, 1999 4.00 to 1.00
</TABLE>
<PAGE> 97
91
<TABLE>
<S> <C>
From and including March 31, 2000
through and including December 31, 2000 3.50 to 1.00
Thereafter 3.00 to 1.00
</TABLE>
SECTION 6.14. Senior Debt Ratio. Permit the Senior Debt Ratio as of the
end of any fiscal quarter falling in any period set forth below to be in excess
of the ratio set forth below for such period.
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
From and including March 31, 1997
through and including June 30, 1997 3.50 to 1.00
From and including September 30, 1997
through and including December 31, 1997 3.25 to 1.00
From and including March 31, 1998
through and including December 31, 1998 3.00 to 1.00
From and including March 31, 1999
through and including December 31, 2000 2.50 to 1.00
Thereafter 2.00 to 1.00
</TABLE>
<PAGE> 98
92
SECTION 6.15. Interest Expense Coverage Ratio. Permit the Interest
Expense Coverage Ratio as of the end of any fiscal quarter falling in any period
set forth below to be less than the ratio set forth below for such period.
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
From and including March 31, 1997
through and including June 30, 1997 1.75 to 1.00
From and including September 30, 1997
through and including December 31, 1997 2.00 to 1.00
From and including March 31, 1998
through and including December 31, 1998 2.25 to 1.00
From and including March 31, 1999
through and including December 31, 1999 2.50 to 1.00
From and including March 31, 2000
through and including December 31, 2000 3.00 to 1.00
Thereafter 3.50 to 1.00
</TABLE>
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or
in connection with any Loan Document or the borrowings or issuances of
Letters of Credit hereunder, or any representation, warranty, statement
or information contained in any report, certificate, financial
statement or other instrument furnished in connection with or pursuant
to any Loan Document, shall prove to have been false or misleading in
any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of
any Loan or the reimbursement with respect to any L/C Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or L/C Disbursement or any Fee or any other amount (other than
an amount referred to in (b) above) due under any Loan Document, when
and as the same shall become due and payable, and such default shall
continue unremedied for a period of three Business Days;
<PAGE> 99
93
(d) default shall be made in the due observance or performance
by Allied, the Borrower or any Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a), 5.05, 5.08 or 5.16 or in
Article VI;
(e) default shall be made in the due observance or performance
by Allied, the Borrower or any Subsidiary of any covenant, condition or
agreement contained in any Loan Document (other than those specified in
(b), (c) or (d) above) and such default shall continue unremedied for a
period of 15 days after notice thereof from the Administrative Agent or
any Lender to the Borrower;
(f) Allied, the Borrower or any Subsidiary shall (i) fail to
pay any principal or interest, regardless of amount, due in respect of
any Indebtedness in a principal amount in excess of $5,000,000, when
and as the same shall become due and payable, or (ii) fail to observe
or perform any other term, covenant, condition or agreement contained
in any agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this clause
(ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of Allied, the Borrower or
any Subsidiary, or of a substantial part of the property or assets of
Allied, the Borrower or a Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Allied, the Borrower
or any Subsidiary or for a substantial part of the property or assets
of Allied, the Borrower or a Subsidiary or (iii) the winding-up or
liquidation of Allied, the Borrower or any Subsidiary; and such
proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(h) Allied, the Borrower or any Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or the filing of any petition described in (g) above,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Allied,
the Borrower or any Subsidiary or for a substantial part of the
property or assets of Allied, the Borrower or any Subsidiary, (iv) file
an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for
the benefit of creditors, (vi) become unable, admit in writing its
inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the
foregoing;
<PAGE> 100
94
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against
Allied, the Borrower, any Subsidiary or any combination thereof and the
same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to levy upon assets or
properties of Allied, the Borrower or any Subsidiary to enforce any
such judgment;
(j) any security interest purported to be created by any
Security Document shall cease to be, or shall be asserted by the
Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent
to maintain possession of certificates representing securities pledged
under the Pledge Agreement and except to the extent that such loss is
covered by a lender's title insurance policy and the related insurer
promptly after such loss shall have acknowledged in writing that such
loss is covered by such title insurance policy;
(k) any Loan Document shall not be for any reason, or shall be
asserted by any Loan Party not to be, in full force and effect and
enforceable in accordance with its terms; or
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part (to the Administrative Agent for the account of
each Lender as provided in this Agreement and the Borrower acknowledges that it
shall have an obligation to pay to the Administrative Agent all accrued amounts
owed by the Borrower under this Agreement and under any other Loan Document),
whereupon the principal of the Loans so declared to be due and payable, together
with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable (to the Administrative Agent for the
account of each Lender as provided in this Agreement and the Borrower
acknowledges that it shall have an obligation to pay to the Administrative Agent
all accrued amounts owed by the Borrower under this Agreement and under any
other Loan Document), without presentment, demand, protest or any other notice
of any kind, all of which
<PAGE> 101
95
are hereby expressly waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent, the Syndication Agent,
the Documentation Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
Goldman Sachs Credit Partners L.P. is hereby appointed to act as Syndication
Agent, Credit Suisse is hereby appointed to act as Administrative Agent and
Collateral Agent on behalf of the Lenders and the Issuing Bank and Citibank,
N.A. is hereby appointed to act as Documentation Agent (for purposes of this
Article VIII, the Administrative Agent, the Syndication Agent, the Documentation
Agent and the Collateral Agent are referred to collectively as the "Agents").
Each of the Lenders and each assignee of any such Lender, hereby irrevocably
authorizes the Agents to take such actions on behalf of such Lender or assignee
or the Issuing Bank and to exercise such powers as are specifically delegated to
the Agents by the terms and provisions hereof and of the other Loan Documents,
together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders and the
Issuing Bank, without hereby limiting any implied authority, (a) to receive on
behalf of the Lenders and the Issuing Bank all payments of principal of and
interest on the Loans, all payments in respect of L/C Disbursements and all
other amounts due to the Lenders hereunder, and promptly to distribute to each
Lender or the Issuing Bank its proper share of each payment so received; (b) to
give notice on behalf of each of the Lenders to the Borrower of any Event of
Default specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by the Borrower or any other Loan Party pursuant to this
Agreement or the other Loan Documents as received by the Administrative Agent.
Without limiting the generality of the foregoing, the Administrative Agent and
Collateral Agent are hereby expressly authorized to execute any and all
documents (including releases) with respect to the Collateral and the rights of
the Secured Parties with respect thereto, as contemplated by and in accordance
with the provisions of this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence
<PAGE> 102
96
of knowledge to the contrary, be entitled to rely on any instrument or document
believed by it in good faith to be genuine and correct and to have been signed
or sent by the proper person or persons. Neither the Agents nor any of their
respective directors, officers, employees or agents shall have any
responsibility to the Borrower or any other Loan Party on account of the failure
of or delay in performance or breach by any Lender or the Issuing Bank of any of
its obligations hereunder or to any Lender or the Issuing Bank on account of the
failure of or delay in performance or breach by any other Lender or the Issuing
Bank or the Borrower or any other Loan Party of any of their respective
obligations hereunder or under any other Loan Document or in connection herewith
or therewith. Each of the Agents may execute any and all duties hereunder by or
through agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
The Lenders hereby acknowledge that no Agent shall be under any duty to
take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, any Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a
bank with an office in New York, New York, having a combined capital and surplus
of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Agent hereunder by a successor bank, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent and the retiring Agent shall be discharged from its duties
and obligations hereunder. After the Agent's resignation hereunder, the
provisions of this Article and Section 9.05 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Allied, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent.
Each Lender agrees to reimburse the Agents and each Revolving Credit
Lender agrees to reimburse the Issuing Bank, in each case, on demand, in the
amount of its pro rata share (based on its Commitments hereunder) of any
expenses incurred for the benefit of the Lenders by the Issuing Bank or the
Agents, as applicable, including counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders or the Revolving
Credit Lenders, as applicable, that shall not have been reimbursed by the
Borrower, and each Lender agrees to indemnify and hold harmless each Agent and
any of their respective directors, officers, employees or agents, and each
Revolving Credit Lender agrees to indemnify and hold harmless the Issuing Bank
and any of its respective directors, officers, employees or agents, in each case
on demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes,
<PAGE> 103
97
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against it in its capacity as the Issuing Bank or
Agent, as applicable, or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrower or any other Loan Party,
provided that no Lender shall be liable to the Issuing Bank or an Agent, as
applicable, or any such other indemnified person for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of the Issuing Bank or such Agent, as
applicable, or any of their respective directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower or Allied, to it at 7201 East Camelback
Road, Scottsdale, Arizona 85251, Attention of Mr. Henry Hirvela
(Telecopy No. 602-481-6038);
(b) if to the Syndication Agent, to Goldman Sachs Credit
Partners L.P., 85 Broad Street, New York, New York 10004, Attention of
Ms. Kathy King (Telecopy No. (212) 357-4597);
(c) if to the Administrative Agent or the Collateral Agent, to
Credit Suisse, 11 Madison Avenue, New York, New York 10010, Attention
of Ms. Lisa Perroto (Telecopy No. (212) 325-8304);
(d) if to the Documentation Agent, to Citibank, N.A., 399 Park
Avenue, New York, New York 10043, Attention of Mr. Greg Williams
(Telecopy No. 212-793-4806);
<PAGE> 104
98
(e) if to an Issuing Bank (other than Credit Suisse), to the
address of such Issuing Bank set forth on Schedule 2.01 or in the
Assignment and Acceptance pursuant to which such Issuing Bank shall
have become a party hereto; and if to Credit Suisse, as Issuing Bank,
to the address set forth in paragraph (c) above; and
(f) if to a Lender, to it at its address (or telecopy number)
set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower or Allied herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Collateral Agent, any Lender or the Issuing
Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, Allied and the Syndication
Agent, the Administrative Agent and the Documentation Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, Allied, the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Issuing Bank or the Lenders that are contained in this Agreement shall bind and
inure to the benefit of their respective successors and assigns.
<PAGE> 105
99
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of such Lender, (x) the Borrower (so long as no Event of Default shall
have occurred and be continuing) and the Administrative Agent (and, in the case
of any assignment of a Revolving Credit Commitment, the Issuing Bank and the
Swingline Lender) must give their prior consent to such assignment (which
consent shall not be unreasonably withheld or delayed) and (y) the amount of the
unused Commitment and Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 (or, if less, the entire remaining amount of such Lender's
Commitment) (it being understood that separate assignments that are made
contemporaneously to persons that are Affiliates shall be deemed a single
assignment for purposes of this sub-clause (y)), (ii) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500 and
(iii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement and (B) the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued for its account and
not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Term Loan Commitment, AXELs Commitments and Revolving Credit Commitment, and
the outstanding balances of its Term Loans, AXELs Loans and Revolving Loans, in
each case without giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (ii) except as
set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto, or the financial condition of the Borrower
or any Subsidiary or the performance or observance by the Borrower or any
Subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05(a) or delivered pursuant to
Section 5.04 and such other documents and information as it has deemed
appropriate to make its own credit
<PAGE> 106
100
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Syndication Agent, the Documentation Agent, the Collateral Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes the Administrative Agent, the Syndication
Agent, the Documentation Agent and the Collateral Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent, the Syndication Agent, the Documentation
Agent and the Collateral Agent, respectively, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Syndication Agent,
the Documentation Agent, the Issuing Bank, the Collateral Agent and the Lenders
may treat each person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank, the Collateral Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Swingline
Lender, the Issuing Bank and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders, the Issuing Bank and the Swingline Lender. No
assignment shall be effective unless and until it has been recorded in the
Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Swingline
Lender, the Issuing Bank or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 to the same extent as if they were Lenders and (iv) the
Borrower, the Administrative Agent, the Syndication Agent, the Documentation
Agent, the Issuing Bank and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Loans
<PAGE> 107
101
or L/C Disbursements and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the rate
at which interest is payable on the Loans, extending any scheduled principal
payment date or date fixed for the payment of interest on the Loans or
increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.17.
(h) Any Lender may at any time assign for collateral purposes only all
or any portion of its rights under this Agreement to a third party to secure
extensions of credit by such third party (or by persons on whose behalf such
third party acts) to such Lender; provided that no such assignment shall release
a Lender from any of its obligations hereunder or substitute any such third
party for such Lender as a party hereto. In order to facilitate such an
assignment, the Borrower shall, at the request of the assigning Lender, duly
execute and deliver to the assigning Lender a promissory note or notes
evidencing the Loans made to the Borrower by the assigning Lender hereunder.
(i) Neither Allied nor the Borrower shall assign or delegate any of its
rights or duties hereunder without the prior written consent of the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Issuing Bank and each Lender, and any attempted assignment without such consent
shall be null and void.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Allied agree,
jointly and severally, to pay all out-of-pocket expenses incurred by the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Collateral Agent, the Issuing Bank and the Swingline Lender in connection with
the syndication of the credit facilities provided for herein and the preparation
and administration of this Agreement and the other Loan Documents or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Collateral Agent or any Lender
in connection with the enforcement or protection of its rights in connection
with this Agreement and the other Loan Documents or in connection with the Loans
made or Letters of Credit issued hereunder, including the fees, charges and
disbursements of Cravath, Swaine & Moore and Ogilvy & Renault, counsel and
Canadian counsel, respectively, for the Administrative Agent, the Syndication
Agent, the Documentation Agent and the Collateral Agent, and, in connection with
any such enforcement or protection, the fees, charges and disbursements of any
other counsel for the Administrative Agent, the Syndication Agent, the
Documentation Agent, the Collateral Agent or any Lender.
<PAGE> 108
102
(b) The Borrower and Allied agree, jointly and severally, to indemnify
the Administrative Agent, the Syndication Agent, the Documentation Agent, the
Collateral Agent, each Lender and the Issuing Bank, each Affiliate of any of the
foregoing persons and each of their respective directors, officers, employees,
trustees and agents (each such person being called an "Indemnitee") against, and
to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby (whether or not the Transactions are consummated), (ii) the
use of the proceeds of the Loans or issuance of Letters of Credit, (iii) any
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, or (iv) any actual or alleged
presence or Release or threatened Release of Hazardous Materials on any Property
or any property owned, leased or operated by any predecessor of Allied, the
Borrower or the Subsidiaries, or any Environmental Claim related in any way to
Allied, the Borrower or the Subsidiaries; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Syndication Agent, the
Documentation Agent, the Collateral Agent, any Lender or the Issuing Bank. All
amounts due under this Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower or Allied against any of and all
the obligations of the Borrower or Allied now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO
<PAGE> 109
103
SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE,
PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY
THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Collateral Agent, any Lender or the Issuing Bank in exercising any power or
right hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Collateral Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or any other Loan Document or
consent to any departure by the Borrower or any other Loan Party therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on the
Borrower or Allied in any case shall entitle the Borrower or Allied to any other
or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower, Allied and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or extend the
date of any mandatory prepayment of principal, or date for the payment of any
interest on any Loan or any date for reimbursement of an L/C Disbursement, or
waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender directly affected thereby, (ii) change or extend the Commitment or
decrease or extend the date for payment of the Commitment Fees or L/C
Participation Fees of any Lender without the prior written consent of such
Lender, (iii) decrease the amount or extend the date for payment of the Issuing
Bank Fees without the prior written consent of each affected Issuing Bank or
(iv) amend or modify the provisions of Section 2.13, 2.17 or 9.04(i), the
provisions of this Section, the definition of the term "Required Lenders" or
release any Guarantor or all or any substantial part of the Collateral, without
the prior written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Collateral Agent, the Issuing Bank or the Swingline Lender hereunder or under
any other Loan Document without the prior written consent of the Administrative
Agent, the Syndication Agent, the Documentation Agent, the Collateral Agent, the
Issuing Bank or the Swingline Lender, respectively. Notwithstanding anything to
the contrary in this Agreement, any proposed waiver, amendment or modification
of a provision that does not directly affect each Class of Loans (as defined
below) shall require only the prior written consent of Lenders holding a
majority of the sum of all Loans outstanding and unused Commitments at such time
with respect to each Class of Loans directly affected thereby. As used in this
Section 9.08(b), the term "Class of Loans" shall mean each of (i) the Revolving
Credit
<PAGE> 110
104
Loans and Revolving Credit Commitments, (ii) the Term Loans and Term Loan
Commitments, (iii) the AXELs Series A Loans and AXELs Series A Commitments, (iv)
the AXELs Series B Loans and AXELs Series B Commitments and (v) the AXELs Series
C Loans and AXELs Series C Commitments.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letters and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith
<PAGE> 111
105
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
Allied and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Borrower, Allied or their
respective properties in the courts of any jurisdiction.
(b) Each of Allied and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Judgment Currency. (a) The obligations of the Borrower
and the other Loan Parties hereunder and under the other Loan Documents to make
payments in dollars (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Administrative Agent, the Syndication Agent, the Documentation Agent or a Lender
or the Issuing Bank of the full amount of the Obligation Currency expressed to
be payable to the
<PAGE> 112
106
Administrative Agent, the Syndication Agent, the Documentation Agent or such
Lender or the Issuing Bank under this Agreement or the other Loan Documents. If,
for the purpose of obtaining or enforcing judgment against the Borrower or any
other Loan Party or in any court or in any jurisdiction, it becomes necessary to
convert into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made at the rate of exchange
(as quoted by the Administrative Agent or if the Administrative Agent does not
quote a rate of exchange on such currency, by a known dealer in such currency
designated by the Administrative Agent) determined, in each case, as of the date
immediately preceding the day on which the judgment is given (such Business Day
being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrower covenants and agrees to pay, or cause to be paid, as a
separate obligation and notwithstanding any judgment, such additional amounts,
if any (but in any event not a lesser amount), as may be necessary to ensure
that the amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial award at the rate of exchange
prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining the rate of exchange for this Section,
such amounts shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.
SECTION 9.17. Confidentiality. The Administrative Agent, the
Syndication Agent, the Documentation Agent, the Collateral Agent, the Issuing
Bank and each of the Lenders agrees to keep confidential (and to use its best
efforts to cause its respective agents and representatives to keep confidential)
the Information (as defined below) and all copies thereof, extracts therefrom
and analyses or other materials based thereon, except that the Administrative
Agent, the Syndication Agent, the Documentation Agent, the Collateral Agent, the
Issuing Bank or any Lender shall be permitted to disclose Information (a) to
such of its respective officers, directors, employees, agents, professional
advisors, affiliates and representatives as need to know such Information, (b)
to the extent requested by any regulatory authority, (c) to the extent otherwise
required by applicable laws and regulations or by any subpoena or similar legal
process, (d) in connection with any suit, action or proceeding relating to the
enforcement of its rights hereunder or under the other Loan Documents, (e) to
any direct or indirect contractual counterparties in swap agreements as long as
such contractual counterparty shall agree to keep such Information confidential,
(f) to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about such Lender's investment portfolio in connection with ratings
issued with respect to such Lender or (g) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section
9.17 or (ii) becomes available to the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Issuing Bank, any Lender or the Collateral
Agent on a nonconfidential basis from a source other than the Borrower or
Allied. For the purposes of this Section, "Information" shall mean all financial
statements, certificates, reports, agreements and
<PAGE> 113
107
information (including all analyses, compilations and studies prepared by the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Collateral Agent, the Issuing Bank or any Lender based on any of the foregoing)
that are received from the Borrower or Allied and related to the Borrower or
Allied, any shareholder of the Borrower or Allied or any employee, customer or
supplier of the Borrower or Allied, other than any of the foregoing that were
available to the Administrative Agent, the Syndication Agent, the Documentation
Agent, the Collateral Agent, the Issuing Bank or any Lender on a nonconfidential
basis prior to its disclosure thereto by the Borrower or Allied, and which are
in the case of Information provided after the date hereof, clearly identified at
the time of delivery as confidential. The provisions of this Section 9.17 shall
remain operative and in full force and effect regardless of the expiration and
term of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ALLIED WASTE NORTH AMERICA, INC.,
by /s/ Roger A. Ramsey
----------------------------
Name: Roger A. Ramsey
Title: Chairman of the Board
by /s/ Henry L. Hirvela
----------------------------
Name: Henry L. Hirvela
Title: Vice President
ALLIED WASTE INDUSTRIES, INC.,
by /s/ Roger A. Ramsey
----------------------------
Name: Roger A. Ramsey
Title: Chairman of the Board
by /s/ Henry L. Hirvela
----------------------------
Name: Henry L. Hirvela
Title: Vice President
<PAGE> 114
108
GOLDMAN SACHS CREDIT PARTNERS
L.P., as Syndication Agent and individually, as
a Lender,
by /s/ Edward C. Forst
-------------------------
Name: Edward C. Forst
Title: Authorized Signatory
<PAGE> 115
109
CREDIT SUISSE, as Issuing Bank and
individually, as a Lender,
by /s/ Joel Glodowski
-------------------------
Name: Joel Glodowski
Title: Member of Senior
Management
CREDIT SUISSE, as Administrative Agent,
by /s/ Heather Rickenberg
-------------------------
Name: Heather Rickenberg
Title: Member of Senior
Management
by /s/ Ira Lubinsky
-------------------------
Name: Ira Lubinsky
Title: Associate
CREDIT SUISSE, as Collateral Agent,
by /s/ Heather Rickenberg
-------------------------
Name: Heather Rickenberg
Title: Member of Senior
Management
by /s/ Ira Lubinsky
-------------------------
Name: Ira Lubinsky
Title: Associate
<PAGE> 116
110
CREDIT SUISSE, as Swingline Lender,
by /s/ Joel Glodowski
-------------------------
Name: Joel Glodowski
Title: Member of Senior
Management
by /s/ D. Wenger
-------------------------
Name: D. Wenger
Title: Associate
<PAGE> 117
111
CITIBANK, N.A., as Documentation Agent,
by /s/ Judith Fishlow Minter
-------------------------
Name: Judith Fishlow Minter
Title: Attorney-in-Fact
CITICORP USA, INC., individually, as a
Lender,
by /s/ Judith Fishlow Minter
-------------------------
Name: Judith Fishlow Minter
Title: Attorney-in-Fact
<PAGE> 118
112
(OTHER BANKS)
by
-------------------------
Name:
Title:
<PAGE> 119
The following exhibits and schedules to this exhibit have been omitted and will
be provided to the Commission on request.
Exhibits and Schedules
<TABLE>
<S> <C>
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Allied Finance Collateral Covenant Agreement
Exhibit C Form of Allied Finance Guarantee Agreement
Exhibit D Form of Allied Finance Pledge Agreement
Exhibit E Form of Allied Guarantee Agreement
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Borrowing Request
Exhibit H-1 Form of Canadian Collateral Covenant Agreement
Exhibit H-2 Form of Canadian Debenture
Exhibit H-3 Form of Canadian Debenture Pledge Agreement
Exhibit H-4 Form of Canadian General Assignment of Book Debts
Exhibit H-5 Form of Canadian Securities Pledge Agreement
Exhibit H-6 Form of Canadian Subsidiary Guarantee Agreement (Quebec)
Exhibit H-7 Form of Hypothec
Exhibit I Form of Indemnity, Subrogation and Contribution Agreement
Exhibit J Form of Pledge Agreement
Exhibit K Form of Pledge Intercreditor Agreement
Exhibit L Form of Security Agreement
Exhibit M Form of Subsidiary Guarantee Agreement
Exhibit N-1 Form of Opinion of Porter & Hedges, L.L.P., counsel for Allied, the
Borrower and the Subsidiaries
Exhibit N-2 Form of Opinion of Thomas K. Kehoe, Esq., internal counsel for Allied,
the Borrower and the Subsidiaries
Exhibit N-3 Form of Opinion of Davies, Ward & Beck, special Canadian counsel for
Allied, the Borrower and the Subsidiaries and Canadian Local
Counsel
Exhibit N-4 Form of Opinion of Ivan R. Cairns, Esq., internal counsel for Laidlaw
and the Laidlaw Subsidiaries
Exhibit O Form of Subordination Provisions
Schedule 1 Laidlaw Subsidiaries
Schedule 1.01(a) Back-up Letters of Credit
Schedule 1.01(b) Existing Letters of Credit
Schedule 1.01(c) Laidlaw Acquired Indebtedness
Schedule 1.01(d) Subsidiary Guarantors
Schedule 2.01 Lenders
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 4.02(a) Canadian Local Counsel
Schedule 4.02(p) Existing Preferred Stock
Schedule 6.01(a) Indebtedness
Schedule 6.02(a) Liens
</TABLE>
<PAGE> 1
EXHIBIT 11.1
ALLIED WASTE INDUSTRIES, INC.
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS - PRIMARY
(IN THOUSANDS EXCEPT FOR PER SHARE AMOUNTS AND NUMBER OF SHARES)
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------------------
1994 1995 1996
------------ ----------- -----------
<S> <C> <C> <C>
Income (loss) before extraordinary loss ................... $ (3,006) $ 12,381 $ (66,015)
Extraordinary loss due to early extinguishment of debt,
net of benefit ..................................... (3,029) -- (13,412)
----------- ----------- -----------
Net income (loss) ......................................... $ (6,035) $ 12,381 $ (79,427)
Dividends on preferred stock .............................. (3,773) (4,070) (1,073)
Conversion fee on equity securities converted ............. -- (2,151) --
----------- ----------- -----------
Net income (loss) to common shareholders .................. $ (9,808) $ 6,160 $ (80,500)
=========== =========== ===========
Historical weighted average common shares outstanding ..... 24,929,088 37,603,356 58,381,631
Common stock equivalents -
Stock options and warrants ............................. --(*) 1,771,280 --(*)
Series C preferred ..................................... --(*) 233,533 --
Issuable pursuant to
earn-out agreements .................................... 99,019 220,014 40,950
----------- ----------- -----------
Weighted average common and common equivalent shares ...... 25,028,107 39,828,183 58,422,581
=========== =========== ===========
Primary net income (loss) per share:
Income (loss) before extraordinary loss ................ $ (0.27) $ 0.15 $ (1.15)
Extraordinary loss ..................................... (0.12) -- (0.23)
----------- ----------- -----------
Net income (loss) ...................................... $ (0.39) $ 0.15 $ (1.38)
=========== =========== ===========
</TABLE>
(*) Assumed conversion of each of these securities, on an individual basis, has
an antidilutive effect on earnings (loss) per share.
<PAGE> 1
EXHIBIT 11.2
ALLIED WASTE INDUSTRIES, INC.
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS - FULLY DILUTED
(IN THOUSANDS EXCEPT FOR PER SHARE AMOUNTS AND NUMBER OF SHARES)
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------------
1994 1995 1996
----------- ------------ ------------
<S> <C> <C> <C>
Income (loss) before extraordinary loss ............... $ (3,006) $ 12,381 $ (66,015)
Extraordinary loss due to early extinguishment of debt,
net of benefit ..................................... (3,029) -- (13,412)
----------- ------------ ------------
Net income (loss) ..................................... (6,035) 12,381 (79,427)
Dividends on preferred stock .......................... (3,773) (4,070) (1,073)
Conversion fee on equity securities converted ......... -- (2,151) --
----------- ------------ ------------
Net income (loss) to common shareholders .............. $ (9,808) $ 6,160 $ (80,500)
=========== ============ ============
Historical weighted average common shares outstanding . 24,929,088 37,603,356 58,381,631
Common stock equivalents -
Stock options and warrants ......................... --(*) 1,989,556 --(*)
Series C preferred ................................. --(*) 233,533 --
Assumed conversions -
Series D preferred ................................. --(*) --(*) --(*)
9% cumulative convertible preferred ................ --(*) --(*) --(*)
$90 cumulative convertible preferred ............... --(*) --(*) --
7% cumulative convertible preferred ................ --(*) --(*) --(*)
Convertible notes .................................. --(*) --(*) --(*)
Issuable pursuant to earn-out agreements .............. 99,019 220,014 40,950
----------- ------------ ------------
Weighted average common and common equivalent shares .. 25,028,107 40,046,459 58,422,581
=========== ============ ============
Fully diluted net income (loss) per share:
Income (loss) before extraordinary loss ............ $ (0.27) $ 0.15 $ (1.15)
Extraordinary loss ................................. (0.12) -- (0.23)
----------- ------------ ------------
Net income (loss) .................................. $ (0.39) $ 0.15 $ (1.38)
=========== ============ ============
</TABLE>
- ----------
(*) Assumed conversion of each of these securities, on an individual basis, has
an anti-dilutive effect on earnings (loss) per share.
<PAGE> 1
EXHIBIT 12
ALLIED WASTE INDUSTRIES, INC.
RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS EXCEPT FOR RATIOS)
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------------------------------
1992 1993 1994 1995 1996
------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Fixed Charges:
Interest expensed ......................... $ 2,838 $ 5,470 $ 10,925 $ 9,247 $ 8,468
Interest capitalized ...................... 424 1,058 3,517 11,088 12,970
------- -------- -------- -------- --------
Total interest expense ................ 3,262 6,528 14,442 20,335 21,438
Interest component of rent expense ........ 242 338 388 915
2,137
Amortization/write-off of debt
issuance costs ........................... 85 540 869 359 877
------- -------- -------- -------- --------
Total fixed charges ................... $ 3,589 $ 7,406 $ 15,699 $ 21,609 $ 24,452
======= ======== ======== ======== ========
Earnings:
Income (loss) from continuing operations
before income taxes .................. $ 2,183 $ 4,015 $ (4,532) $ 21,255 $(66,414)
Plus fixed charges ........................ 3,589 7,406 15,699 21,609 24,452
Less interest capitalized ................. (424) (1,058) (3,517) (11,088) (12,970)
------- -------- -------- -------- --------
Total earnings ........................ $ 5,348 $ 10,363 $ 7,650 $ 31,776 $(54,932)
======= ======== ======== ======== ========
Ratio of earnings to fixed charges ........... 1.5x 1.4x * 1.5x **
======= ======== ======== ======== ========
</TABLE>
- -------------------------
* Earnings were inadequate to cover fixed charges by $8,049.
** Earnings were inadequate to cover fixed charges by $79,384.
<PAGE> 1
Exhibit 21
Subsidiaries of the Registrant (after giving effect to the Canadian Sale)
Name Jurisdiction
- ---- ------------
Allied Waste Finance (Canada) Ltd. Canada
Allied Waste North America, Inc. Delaware
A and W Disposal Service, Inc. Illinois
Allied Waste Industries (Midwest), Inc. (d/b/a Groen) Illinois
South Holland Scavenger Service, Inc. Illinois
Allied Waste Industries of Illinois, Inc. Illinois
Lee County Landfill, Inc. Illinois
Streator Area Landfill, Inc. Illinois
Allied Waste Systems, Inc. Illinois
Brickyard Disposal & Recycling, Inc. Illinois
Citiwaste, Inc. Illinois
John Spot Portable Services, Inc. Illinois
Duckett Disposal, Inc. Illinois
Illinois Development Corporation Illinois
National Waste Industries, Inc. Illinois
Superior Scavenger, Inc. Illinois
National Waste Services, Inc. Illinois
Acme Scavenger Service, Inc. Illinois
Consolidated Processing, Inc. Illinois
Duke Refuse Disposal, Inc. Illinois
Peter Laning Sons Inc. Illinois
Post Disposal Service, Inc. Illinois
Sanitary Waste Services, Inc. Illinois
South Suburban Disposal, Inc. Illinois
Southwest Disposal Service, Inc. Illinois
R.18, Inc. Illinois
Upper Rock Island County Landfill, Inc. Illinois
RCS Inc. Illinois
USI/Hustler, Inc. Illinois
AAWI, Inc. Texas
Allied Waste Services, Inc. Texas
Environmental Development Corp. Texas
Illinois Landfill, Inc. Illinois
K & H Disposal, Inc. Illinois
Van Weelden Brothers, Inc. Illinois
Vermilion Waste Systems, Inc. Delaware
Newton County Development Corporation Indiana
Allied Waste of California, Inc. California
Allied Enviroengineering, Inc. Delaware
Allied Enviro Engineering, Inc. Texas
EOS Environmental, Inc. Texas
Allied Enviro Engineering, Inc. California
Allied Waste Alabama, Inc. Delaware
Allied Waste Systems, Inc. Delaware
Sanco, Inc. New Mexico
AWIN Finance Company, Inc. Delaware
AWIN Leasing Company, Inc. Delaware
Container Corporation of Carolina Delaware
Allied Waste Hauling of Georgia, Inc. Georgia
Allied Waste Industries of Georgia, Inc. Georgia
Bulldog Johnny, Inc. Georgia
Clayco Sanitation Company Georgia
Haul-All Sanitation, Inc. Georgia
Johnny on the Spot-Portable Toilets, Inc. Georgia
Southern States Environmental Services, Inc. Georgia
1
<PAGE> 2
Allied Waste Industries (Arizona), Inc. Arizona
Apache Junction Landfill Corporation Arizona
Pinal County Landfill Corp. Arizona
Allied Waste Industries (Southwest), Inc. Arizona
Best Disposal Services, Inc. Arizona
Pen-Rob, Inc. Arizona
Sun Services & Liquid Waste Removal, Inc. Arizona
Super Services Waste Management, Inc. Arizona
Mr. Potty, Inc. Arizona
Allied Waste Industries (Colorado), Inc. Colorado
L&M Disposal, Inc. Colorado
Allied Waste Industries of Alamosa, Inc. Colorado
Allied Waste Industries (Missouri), Inc. Missouri
Midwest Waste RDF, Inc. Illinois
Bluff Trash Service, Inc. Missouri
Midwest Land Development Corp. Missouri
Midwest Landfill Corporation Missouri
Midwest Waste, Inc. Missouri
Midwest Waste Industrial, Inc. Missouri
North American Recycling, Inc. Missouri
Ozark Foothills Regional Recycling Facility, Inc. Missouri
Poplar Bluff Construction and Development Company, Inc Missouri
Sanico, Inc. Missouri
Willey Enterprises, Inc. Missouri
Cass County Disposal, Inc. Missouri
Lemons Landfill Corporation Missouri
Lemons Waste Systems, Inc. Missouri
Autoshred, Inc. Missouri
Chuck's Disposal Service, Inc. Missouri
T. and W. Disposal Company Missouri
Allied Waste Industries (New Mexico), Inc. New Mexico
Environmental Control, Inc. New Mexico
Allied Waste Industries of Indiana, Inc. Indiana
Allied Waste Industries of Northwest Indiana, Inc. Indiana
Allied Waste Industries of Plymouth, Inc. (d/b/a Keywaste) Indiana
Illiana Disposal Service, Inc. Indiana
Ooms Bros. Disposal Service, Inc. Indiana
Service Waste, Inc. Indiana
Wastehaul, Inc. Indiana
Allied Waste Industries of Tennessee, Inc. Tennessee
Allied Waste Industries of Virginia, Inc. Virginia
Allied Waste Industries of Wyoming, Inc. Wyoming
Dopheide Sanitary Service, Inc. Nebraska
W. J. Flyte Corporation South Dakota
CRX, Inc. Nevada
Community Refuse Disposal, Inc. Nebraska
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
Oscar's Collection Systems of Fremont Inc. Nebraska
Allied Insurance and Indemnity Corporation Vermont
Specialized Waste Systems, Inc. (50% owned) Delaware
Laidlaw Waste Systems, Inc. Delaware
City Garbage, Inc. Texas
Dempsey Waste Systems, Inc. Ohio
Tricil (N.Y.), Inc. New York
Laidlaw Waste Systems Holdings, Inc. Delaware
Environmental Reclamation Company Illinois
Laidlaw Gas Recovery Corporation, Inc. California
Laidlaw Gas Recovery Corporation II, Inc. California
Laidlaw Gas Recovery Systems, Inc. California
2
<PAGE> 3
CATPAC Two, Inc. Delaware
Laidlaw Medical Services, Inc. Delaware
Laidlaw Waste Systems (Adrian) Inc. Michigan
Laidlaw Waste Systems (Bellefontaine) Inc. Ohio
Laidlaw Waste Systems (Belleville) Inc. Missouri
Laidlaw Waste Systems (Bridgeton) Inc. Missouri
Laidlaw Waste Systems (Celina) Inc. Ohio
Laidlaw Waste Systems (Chiquita) Inc. California
Laidlaw Waste Systems (Colorado) Inc. Colorado
Laidlaw Waste Systems (Dallas) Inc. Delaware
Laidlaw Waste Systems (Fort Worth) Inc. Delaware
Laidlaw Waste Systems (Houston) Inc. Delaware
Laidlaw Waste Systems (Jefferson City) Inc. Missouri
Laidlaw Waste Systems (Kansas City) Inc. Missouri
Laidlaw Waste Systems (Madison) Inc. Illinois
Laidlaw Waste Systems (Michigan) Inc. Delaware
Laidlaw Waste Systems (Oklahoma City) Inc. Oklahoma
Laidlaw Waste Systems (Texas) Inc. Texas
Laidlaw Waste Systems (Valley View) Inc. Kentucky
Williams County Landfill, Inc. Ohio
Allied Waste Holdings (Canada) Ltd. Canada
Laidlaw Medical Services Ltd. Canada
3
<PAGE> 1
EXHIBIT 24.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form 10-K of our report dated March 26, 1997, included in the
Registration Statements on Forms S- 4 (File No. 333-3585 and No. 333-22575), the
Registration Statement on Form S-3 (File No. 33-73618) and the Registration
Statements on Forms S-8 (File No. 33-42354, No. 33-63510, No. 33-79654, No. 33-
79756 and No. 33-79664).
ARTHUR ANDERSEN LLP
Phoenix, Arizona,
March 26, 1997.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 50,094
<SECURITIES> 0
<RECEIVABLES> 94,328
<ALLOWANCES> 5,806
<INVENTORY> 6,941
<CURRENT-ASSETS> 709,762
<PP&E> 795,967
<DEPRECIATION> 89,215
<TOTAL-ASSETS> 2,317,549
<CURRENT-LIABILITIES> 682,686
<BONDS> 1,034,330
0
1
<COMMON> 747
<OTHER-SE> 274,810
<TOTAL-LIABILITY-AND-EQUITY> 2,317,549
<SALES> 246,679
<TOTAL-REVENUES> 246,679
<CGS> 138,437
<TOTAL-COSTS> 138,437
<OTHER-EXPENSES> 167,509
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 9,257
<INCOME-PRETAX> (66,414)
<INCOME-TAX> (399)
<INCOME-CONTINUING> (66,015)
<DISCONTINUED> 0
<EXTRAORDINARY> 13,412
<CHANGES> 0
<NET-INCOME> (79,427)
<EPS-PRIMARY> (1.38)
<EPS-DILUTED> (1.38)
</TABLE>
